CIVIL PROCEDURE LB 206

Right of Access to justice

Access to court
S69 of the Constitution of Zimbabwe- Right to a Fair Hearing
S31 of the Constitution of Zimbabwe- Legal Aid

LOWER COURTS IN ZIMBABWE

The Lower courts in Zimbabwe includes the customary law courts also known as the local
courts. In addition, there is also the Magistrates Court next up the hierarchy of courts. On ad
hoc basis there are various statutes that allows for setting up of Tribunals either by the
Minister or by the President. See section 174 of the Constitution of Zimbabwe No 20 of
2013. The local courts-comprised of Primary Court and Community Court. The appeals and
reviews as will be discussed in detail will lie to another lower court, the Magistrates Court.
The local courts apply customary law while the Magistrates Court applies general law.

What is customary law?

The Zimbabwean customary law is not codified but the 1980 Constitution of Zimbabwe
clearly shows that the customary law is as existing on 10th June 1891 as modified and
developed since modification by Roman Dutch Law common law. The customary law of
Zimbabwe remains largely uncodified. The current constitution does not help in defining
what is customary law. Section 192 simply provides that ‘the law to be administered by the
courts of Zimbabwe is the law that was in force on the effective date, as subsequently
modified.’

Section 3 of the CLLCA provides for the circumstances where the customary law applies. In
application of customary law the following ought to be taken into consideration:
a. The parties ought to agree to the application thereof, also taking into consideration the
nature of case and surroundings. The surrounding circumstances would include mode
of life. See the case of Lopez v Nxumalo. It includes the subject matter, the
understanding by the parties of the provisions of customary law or the general law of

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 Zimbabwe and Relative closeness of the case and parties to customary law or general
law.
b. Subject matter of the case where applicable: Is it a subject matter which requires the
application of customary law?
c. If the parties agree the application of customary law.
d. Where regard has been considered to the nature of the case and the surrounding
circumstances and it appears just and proper that it applies.

Primary Courts
It is established by a Minister by a warrant under s10 (1)(a) of CLLCA. The warrant specifies
specific geographical area. The Minister further appoints the presiding officer, headman or
any other person. The Minister can appoint and remove headmen but has to consult with the
Minister who administers the Act (Traditional Chiefs Act). The headman would be assisted
by assessors and at least two and less than five. These act in an advisory capacity

Community Courts
It is constituted by a warrant by the Minister in terms of s10 (1) b of CLLCA. The Presiding
officer is a Chief or some other person appointed by the minister. In terms of s11 (2) and s11
(3) of the CLLCA the Minister must consult for the Ministry administering the Chiefs Act.
Further in terms of s12 the assessors must be between 2 and not more than five. The
assessors act as advisors.

Jurisdiction
The customary law courts or local courts jurisdiction is demarcated in terms of s15 (1)(a) of
the Customary Law and Local Courts Acts (CLLCA). It has no jurisdiction on claims that are
not determinable by customary law.
The local courts are thus empowered to hear, try and determine any civil case in which
customary law is applicable. See s15 of the CLLCA. The local court may hear a matter if
only:
a. The defendant is resident within the area of jurisdiction of the court or
b. The cause of action or any part thereof arose within the court’s area of jurisdiction or
c. The defendant consent to the jurisdiction of the court or

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d. The other local court with competent jurisdiction transfers a case to another local court of
competent jurisdiction.
e. It can adjudicate upon a customary union recognised by customary law. (not Customary
marriage)
See s15 of CLLCA.
The jurisdiction of the local court is however limited as follows:
a. The local court cannot preside over a matter that is not determinable by customary
law.
b. Where the value of the claim or the thing exceeds the prescribed value of the local
courts.
c. The local courts cannot determine the validity, effect or interpretation of any will
d. It cannot dissolve any marriage.
e. The local court may not determine the custody, or guardianship of minors
f. It cannot determine maintenance issues,
g. It cannot determine rights in respect of land or other immovable properties.
See s16 of CLLCA
Proceedings in the Local Court
The local court proceedings are commenced as follows:

Commencement of the Proceedings

The proceedings are commenced by summons issued by the aggrieved person. The summons
should state the venue, the local court and the time of the proceedings. The parties may
though by agreement appear before a local court. The local court is empowered to summon
before a defendant or any witnesses who is required to give evidence before it. See s19(1) of
CLLCA.
Defendant’s response
The defendant may respond orally on the day in question or may file a written response.
There is no requirement for formality.
Hearing and Leading of evidence.
The procedure and leading of evidence is regulated by customary law and not by general law.
However, the principles of natural justice applies. The hearing and leading of evidence is
done informally and in a simple manner. S20(1) of CLLCA. The guiding principle to the
presiding officer is to do the hearing in the informal and simple manner that enhances
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substantial justice. See also s26 of the CLLCA. In terms of section 20(2) a legal practitioner
shall not be entitled to appeal before a local court on behalf of a party but in terms of s69(4)
of the Constitution of Zimbabwe that is now unconstitutional.
The hearing of all local courts shall be done in open courts. S20(3) of CLLCA.

Transfer of cases between local court or to a Magistrates Court

The presiding officer may cause a transfer of a case if:
a. The matter is not supposed to be determined according to customary law
b. His/her court lacks jurisdiction to try the case.
c. For any other good reason, i.e. recusal, etc.
The transfer can be done at any stage before the judgment. The case should be referred to a
Magistrate who shall give directions as to the transfer to another court. The Magistrate to
whom such a case is referred have powers to annul the proceedings and refer the case to be
heard de novo by a competent local court or by a Magistrates Court of competent jurisdiction.
Further a Magistrate may direct that the case be continued in the court which referred the case
to him. See s22 of CLLCA.

Contempt of court
A person may be found in contempt of a local court if he/she insults any member of local
court, interrupts wilfully, or disturb the peace of any local court proceedings. The local court
has power to have that person removed from the court or have him detained in custody until
the court adjourns. In addition, such a person in contempt may be fined although he/she will
be entitled to appeal. See s21 of CLLCA

Default of the Defendant

If a summoned person fails to appear before the local court or to remain in attendance until
excused , the local court if satisfied that the default is wilful order arrest of the defaulter. The
arrest can only be done if evidence of wilful default is produced which for example maybe
evidence of service i.e certificate of service signed by person responsible for effecting
service. When an order for arrest is made, the defaulting party will be arrested and brought
before the local court. The arrest is effected by the messenger of that local court. However if
the messenger of that court cannot arrest the defaulting party, the order should be reduced in
writing and then endorsed by the magistrate, for the messenger of court or a police officer to
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effect the arrest.The arrested person brought before the local court shall be entitled to be
heard before a penalty is imposed. The local court may impose a fne as prescribed by a
statutory instrument as reviewed from time to time. The fine maybe appealed as follows.
Appeal from primary court should be made to the community court, community court to the
Magistrates Court.
a.

Remedies that maybe granted by the Local Courts

A local court may make an order in the following terms:
a. It can order the payment of damages ,
b. It can order the specific perfomance of a contract,
c. It can order payment of penal damages where it is provided so under customary law.
d. It can make an order on issue of costs.
e. Or an order which meets the justice of the case.
See s17 of CLLA
Enforcement of the Local Courts Orders.
The judgment of a local court if not satisfied, the person whom the judgment is in favour
may register it for enforcement in the Magistrates Court. The order is registrable in the
jurisdiction of Magistrate court where the local court is located. The order certifed by the
presiding oficer or clerk of court of the local court should be lodged with the clerk of the
Magistrate Court. See s18 (1) of CLLA.
The clerk of the Magistarte court is empowered to then issue a writ of execution which is
executable by the Messenger of the Magistrates Court as if it were a judgment of the
Magistrates Court. S18(2) of the CLLA
A writ of execution of a local court judgment is suspended by an appeal to the Magistrates
Court. S18(3) of the CLLA
The judgment of a local court lapses after two years and can only be registered if it is revived.
The judgment cof a local court may only be revived by the local court which pronounced it or
another local court of competent jurisdiction. S18(4)(5) of CLLA.

Appeals
Appeals from the Primary Court

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An appeal from the Primary Court lies with the Community Court within the jurisdiction
which the Primary Court is located. The appeal hearing is a rehearing and the Community
Court can give any decision it thinks is just. See s23(1) of CLLCA.

Appeals from Community Court

The appeal from Commmunity Court lies with the Magistarates Court within the jurisdiction
which the Community Court is located. The Magistrate will rehear the matter and gives a
decision he thinks is just. The Magistrate in rehearing the appeal is assisted by two or more
assessors. The assessors shall act in advisory capacity.

Appeals from the Magistrates Court

A decision of the Magistrate is appealeable to the High Court of Zimbabwe.
See s23,24 of CLLCA.

Reviews

The Magistrates Court has powers to review proceddings of the local courts. The gorunds
of review are:
a. If a local court gives a decision it is not competent to give.
b. If it has no jurisdiction to preside over the matter.
c. Where there is violation of principles of natural justice.
The Magistrate shall afford all the parties affected the right to be heard. After hearing the
case the Magistrate may order the following:
1. annul the procedings and order a hearing de novo before the same local court or another
2. refer the matter to a Magistrate with competent jurisdiction
3. set aside the judgment and return the matter to the same court with directions on how to
proceed.
Only matters that are not more than twelve months old maybe reviewd by the Magistrate.
The party affected by the review order or judgment by a Magistarte Court may be ordered to
refund or restitute that is if the local court judgment has been executed.
A review judgment by a magistrate is subject to appeal like any Magistrates Court judgment
or order to the High Court.
See s25 of CLLCA.
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Types of Procedures in the Magistrates Court
There are two basic forms of proceedings which may be used for instituting proceedings in
the civil courts ( (i) Action – summons and (ii) Application -by way of notice of application
or and affidavit of evidence.

There are circumstances were application procedures are not used. For Example:

a. Where the statute specifically provides for so e.g in matrimonial matters; claims for
unliquidatd damages – it means they are not yet been qualified by the court and
difficult to ascertain. See Room Hire Co. v Jeppe Street Mansions 1949 (3) SA 1155,
Civil imprisonment etc.

b. There are also cases where it is in the discretion of the person instituting proceedings
to go by way of application or action what should influence a party, particularly if
there are no material disputes of facts. Whether or not there is a material dispute of
fact. If there is a material dispute of fact then don’t use application proceedings.
Room Hire Co. v Jeppe Street Mansion (supra). This was an appeal from the decision
of the WLD declaring the tenancy by the appellant of certain premises belonging to
the defendant to be null and void under the provisions of s8 of Ordinance 46 of 1903.
The grounds on which the tenancy was declared null and void was that the premises
were allegedly being used as a brothel. The court had also ordered the ejectment of
the appellant on the premises. The applicant has resisted the application to eject him
on three grounds:

(i) that there was a material dispute of facts which could not be resolved on
affidavit evidence.

(ii) the evidence adduced on the affidavit was insufficient to establish the alleged
improper use of the premises.

(iii) They had been an unqualified acceptance of the rent by the

applicant/landlord. It was argued a waiver of any breach of tenancy.

Held: On the issue of waiver of breach the court held that the facts the
respondent had not been aware of the payment and had tendered return of
payment when he became aware of it. It was stated the lease was
automatically terminated when realised that the premises were being used
as a brothel. Held: On material dispute of fact the court held that for the
defendant to allege that there was a material dispute of fact he must
establish a real issue of fact which cannot be satisfactory determined
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 without the aid of oral evidence. He must not make a bare denial or
merely allege a dispute. The court concluded that the real dispute of fact
had been shown and that the court a quo should have hear oral evidence on
the issue in terms of the rules. The matter was referred back to court a quo
for proper exercise of discretion to hear oral evidence.

With regard to dispute of fact it has been stated in the case law that the court must not
hesitate to decide an issue on affidavit evidence merely because it may be difficulty to do so.
It should adopt a robust view and endeavour to resolve the dispute without the hearing of oral
evidence if this can be done without doing an injustice to either party. See also Soffiantini v
Mould 1956 (4) SA 150- The appellant was the owner and lessor of certain premises and the
respondent was the lessee. The appellant was interfering with the respondent’s occupation of
the premises. The respondent applied for and was granted an interdict restraining the
appellant from interfering with his occupation of the premises. The appellant appealed
against the granting of interdict in that :

i. there was a genuine dispute of fact which could not be resolved on affidavit
evidence.
ii. The Judge a quo should have directed oral evidence to be heard. Held: It is
necessary to make a robust common sense approach to a dispute on motion
(application proceedings) as otherwise the effective functioning of the court
can be harm strung and circumvented by the most simple and blatant strategy.
The court must not hesitate to decide an issue of facts on affidavit merely
because it may be difficult to do so. Justice can be defeated or serious impeded
and delayed by an over fastidious approach to a dispute raised in affidavti.”
See also Joosab & Ors v Shah 1972 (4) SA 298

c. Application procedure is used normally in interlocutory proceedings i.e for interim

reliefs, interdicts pendete lite

d. Where the matter is urgent.

What about if there are material facts that cannot be resolved on paper?

If the court discovered that there is a material dispute of fact and cannot be resolved on
affidavit, it has 3 options:
i. It can dismiss the application
ii. The court can order the parties to go to trial .
iii. The court can hear oral evidence on the issue in dispute .

Stages of an Action
• Issuing of summons
• Service of summons
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 • Appearance to defend (notice of intention to defend)
• Plea
• Reply
• Close of pleadings
• Discovery of Documents
• Pre-trial conference
• Set down for trial
• Trial
• Judgment

Stages of an Application
• Notice of application and supporting affidavit
• Service of notice of application and supporting affidavit
• Notice of opposition and opposing affidavit
• Replying affidavit
• Set down
• Hearing
• Judgment

Choice of Proceedings
Application not permissible unless there is a provision which expressly authorises its use in
the Act or the Rules or some other Statute

Common terms in the Magistrates Court

Plaintiff-
Defendant-
Applicant
Respondent
Absolution from the instance
On a balance of probabilities
Adversarial system
Inquisitorial system
Judgment for Plaintiff
Judgment for the defendant

What is a Demand?

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There are instances where a demand is exercised and these are:
a. Where you want to safeguard the costs of summons. If the plaintiff does not make a
demand serve summons. Upon receipt of the summons the debtor pays and the
plaintiff will not be entitled to the costs of the summons. The only exception is where
the date of performance of obligation is fixed in terms of the agreement.
b. Where a demand is required to complete the cause of action. Examples are by statute
i.e the State Liabilities Act – 60 days notice is required when suing the state.
c. By agreement between the parties
d. Where a demand is required to place the debtor in mora.
e.
Pleading of a Demand
It is necessary if demand was necessary to complete the cause of action.

The form and content the demand.

It need not be in writing unless stipulated by statute or by agreement between the parties.It
can be by the creditor himself or by someone representing the creditor i.e Legal Practitioner.
The demand must give sufficient detail to enable the debtor to know the basis upon which the
creditor is making his or her claim.The demand must giv,e reasonable time for the debtor to
comply. Reasonable time depends on the circumstances. Usually 7 days is given to pay. It is
not necessary to threaten legal action. See Francis v Roberts

Prescription

General Law claims

Prescription Act, Chapter 8:11 (section 13). A Claim is extinguished because have run
out of time.
Debts owed to the state in respect of taxes, royalties, tribute, share of profits – 30 years
State loans or debts from sale or lease of land by the state – 15 years
Other debts owed to the state or debts arising from bills of exchange or other negotiable
instruments or notarial contracts – 6 years
Any other debt – 3 years except where an enactment provides otherwise e.g. Section 70 of the
Police Act, Chapter 11:10 provides for 8 months as prescription period.; section 25 of the
Road Traffic Act, Chapter 13:11.
Claims against insurance must sue insuarer but within 2 years (Roads Traffic) Act

Customary law claims

 There is no prescription for customary law claims. There is no prescription for claim
governed by Customary law prescription Act, Muwalo v Mugunga HH 60/2006

Officers of the Court

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Magistrate
Messenger of Court
Clerk of Court
Assessors
Chief Magistrate
Interpreters

Locus Standi in judicio

Parties need to have legal capacity to use or defend proceedings. Legal capacity is also
referred to as locus standi. Locus standi is bestowed in general on all natural persons over
18 years old with the exception of certain category of people who are under legal disability.
For example:

a. Minors - A minor is sued in the name of guardian or in their own name assisted by
the guardian. If they have no guardian seek an order that a curator ad litem be
appointed. The same applies when the interests of the guardian conflicts with those of
the minor child.

b. Mentally Incapacitated-Any proceedings against them are instituted by a curator ad

litem.

c. People declared insolvent: represented by the Trustee.

d. Woman married in community of property: husband institutes the action on behlaf of

the woman as she is deemed a minor.

e. Prodigal: it’s a person who is financially irresponsible and is represented by a curator

bonis of ad litem.

f. Alien enemies – cannot sue – it’s a person in a country in a declared state of war.

g. Fugitives cannot sue as they are regarded as temporary stripped of their citizenry
rights.

h. MPs cannot be sued in terms of privileges of Immunities Powers Act for acts done in
Parliament within the rules of parliament.

 Diplomats: Privileges and Immunities Act only in cases of governmental nature.

Barker Mccormark P/L v Government of Kenya 1983 (2) ZLR 72 (SC)
i. President: s98 of the Constitution in his personal capacity. In his official capacity he
can be sued with the leave or permission of the court in terms of Order 6 Rule 1 of
the Magistrates Court (Civil) Rules,1980 (Rules).

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 j. Judges- MCA(Civil) Rules,1980, Order 6 Rule 1

k. Claims against state for payment of money must give notice of intention S6,
State Liabilities Act.
l. In respect of the artificial persons the following have locus standi injudicio if they are
established or incorporated within the laws:

(a) The government (state) may be sued in terms of s6 of the States Liabiities Act. A
responsible Minister or head of Department or the Secretary of the Ministry
concerned may be sued as a defendant in terms of s3 of the State Liabilities Act. One
should cite the Minister by title and not by name e.g XV Minister of Lands
(b) Local authorities and municipalities e.g RDC or urban councils may be sued in their
full incorporated names.
(c) Statutory bodies e.g Universities
(d) Parastatals e.g ZESA; ZINWA
(e) Companies incorporated under the Companies Act
(f) Co-operatives incorporated under Cooperative Societies Act
(g) Common law univeristas (e) – body which is regarded by common law. There are
three (3) elements to be satisfied:
i. It must have an entity which is distinct and separate from its individual
members.
ii. It must have perpetual sucession – a life which extents beyond the life of its
members.
iii. it is capable of owning property separately from its members.

See: Morrison v Standard Building Society 1932 AD 229.

The respondent was an incorporated building society which brought an action against
the appellant for ejectment from premises situated in Pretoria and for damages. The
appellant consented amongst other things that the defendant had no locus standi. The
argument was dismissed in the TPD. Held: An association of individual does not
always require the special function of the state inorder to enable it to hold property or
to use its corporate name whether or not it can depend on the nature of the
association, its constitution, its objectives and activities. The court concluded that the
standard for building society have been formed in 1891 and these activities had not at
any time been interferred with. Also its possessed the characteristics of a universitas.

Unification Church of Zimbabwe v Kundiona & Ors HCH 94/93

The applicant was seeking to bring certain companies under judicial management
pending the removal of the respondent as directors of the companies. The
respondents raised a point in limine (in limine – point raised at beginning of
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 proceedings) that the applicant had no locus standi. The applicant had been registered
in 1977 as a welfare organisation under the Welfare Organisation Act. The
Constitution of the applicant gave him among other powers to purchase and acquire
property both movable and immovable and to carry on business with a view to
increasing the revenue of the association and also to institute and defend legal
proceedings.Held: The court found that although conformed to the requirement of
common law universitas, the application should be dismissed because the applicant
had not used the name to its constitution described as the Unified Family. The second
reason was that the deponent of the founding affidavit did not have authority to
depose to the affidavit as required by the Constitution. See also Moloi v St John
Apostolic Faith Mission 1954 (3) SA 940

h. Partnerships
i. Interested parties -A person must have an interest in the matter to institute
proceedings. It has been described as direct and substantial interest and real interest.
See Zimbabwe Teachers Association & Ors v Minister of Education and Culture
1990 (2) ZLR 48.They were teachers who had been dismissed in terms of the
Emerging Powers Maintenance of Essential Services Regulations SI 160A/89. The
Zimbabwe Teachers Association sought an order seeking (reinforcement of)
reinstatement of teachers. Dismissed teachers were also part of it. The point in
limine was that whether ZTA had locus standi. The question was whether the 3
dismissed teachers who sought to be involved in the proceedings could be joined at
that stage. Held: On the first one the court ordered that the teachers had real and
substantial interest in the matter. Secondly three teachers had sufficient interest in
the matter to be joined as parties.

See also Sibanda & NPSL v Mugabe & Anor HH 102/94. Sibanda was the secretary
general of the NPSL. He was suspended by ZIFA and Mugabe was the Chairperson.
The proceedings were brought on review by Sibanda on the basis of jurisdiction,
interest in the company was biased, malice and seeking that the decision and
punishment reached were unreasonable.The respondent claimed that the NPSL had
no locus standi because it sought no relief and no order was made against him by
ZIFA and therefore its interest in the outcome of the review was indirect. The
response of the NPSL was that they had the interest in the matter because as its
secretary-general Sibanda carried out various functions for it and saw the action
against Sibanda was actually an attack on them. Held: The NPSL had direct and
substantial interest in the matter therefore they had locus standi to institute the review
proceedings.

a) Locus standi in terms of s85 (1) of the Constitution of Zimbabwe on constitutional

matters.

The Jurisdiction of the Magistrates Court

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It is a creature of a “statute”. It does not have jurisdiction in any case where such jurisdiction
is not expressly conferred on it by law, specifically statute. See Hatfiled Town Council Board
v Mynfred 1962 RN 799. The Magistrates Court has jurisdiction in general and customary
law cases subject to geographical, monetary and subject matter of a case limitations.
The Jurisdiction of the Magistrates Court involves granting interdicts. In terms of s12 of
Magistrates Court Act, it can grant mandatory, or compelling order, or resitutionary interdict.
See Francis v Roberts 1973 (1) SA 507.
A Magistrate Court’s jurisdiction is premised on three aspects; territorial, monetary and cause
of action. These aspects demarcates and limits the jurisdiction of the Magistrates Court as
will be discussed.

Jurisdiction based on territory/geographical location

The Magistrates Court has jurisdiction territorially over the following persons:
a. Any person who resides , carries on business or is is employed within the province.
b. Any partnership whose business premises are situated in the province or if any
member of the partnership resides in the jurisdiction of the court.
c. On any person who institutes proceedings in the court and any other persons affected
by the proceedings instituted in the Magistrates Court.
Any person if the cause of action arose wholly within the province. See also B Ex parte
Ministry of Native Affairs 1941 AD 53
See s11(1)(a) of the Magistrates Court Act[MCA].

Jurisdiction based on cause of action

The cause of action is a set of facts that forms the core of one ‘s claim and enable or justify
someone to institute proceedings against another normally called a defendant. The facts
needs to be necessary or material for the plaintiff to prove its claim or support her/his rights.
See the case of Mackenzie v Farmers Co-operative Meat Industries 1922 AD 16; Cook v Gill
LR 8 CP 107. The Magistrate Court has jurisdiction over the following causes of action:

a. Claims based on liquid document- Eg bill of exchange, promissiory note, good for,
bond, written acknowledge of debt provided it does not exceed the prescribed amount
in terms of the rules.

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 What is a claim for a debt or liquidated demand?
This is a claim for either a specific amount of money or one that is capable of speedy
and prompt assessment, claim of a specific thing. It is a claim of a debt or liquidated
demand because it was a fixed amount of money and certain.

The following are examples of a debt or liquid claims:

i. See Fred & Anor v Keelan 1951 SR 7- A claim for an order declaring
property specially hyphothecated in a mortgage bond to be executable (sold in
execution). The claim was held to be a claim for a liquidated demand.

ii. See also Mohr v Krier 1953 (3) SA 600-The plaintiff was claiming several
things- the sum of 1300 pounds being the balance of amount due in terms of a
deed of dissolution of partnership entered into between the plaintiff and the
defendant.
iii. In Brown Brothers & Taylor Ltd v Smeed 1957 (2) SA 498, a claim for

money stolen by the defendant from plaintiff was held to be a claim for debt or
liquidated demand but the claim for the value of goods stolen by the defendant was
held to be unliquidated. See International Hardwork Cooperation 1971 (1) SA 404

Reached the same decision that claim for stolen money is a liquidated demand and a
debt.

Standwin Investment Pvt (Ltd) v Helfer 1961 (4) SA 470.

A claim for the value of goods as an alternative to the return of the goods was held to
be a claim for a debt or liquidated demand. The case involved a claim for the return
of a truck failing of which payment of 500 pounds which was the value of the truck.

An opposite conclusion was reached in Hugo Franco (Pvt) v Gordon 1956 RN 148.

Fartis Engineering Co. Ltd v Vendick Spares Ltd 1962 SA (2) 736 TPD. A claim for
work done and material supplied was held to be a claim for a debt or liquidated
demand. The same conclusion was reached in International Harvestor v Ferreira
1975 (3) SA 831 CPD.

Belingwe Stores (Pvt) Ltd v Minyembe 1972 (4) SA 463. A claim for the value of
shortfall of stock as per a written undertaking by the defendant was held to be a claim
for a debt or liquidated demand. The defendant was storekeeper for the plaintiff and
signed an undertaking to pay if there is a shortfall.

Brooks & Anor v Martin Bros. Plumbing (Pvt) Ltd 1974 (2) SA.

A claim for confirmation of cancellation of an agreement of sale of certain immovable

property and ejectment of defendant from property was held to be a debt or liquidated
demand.

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 Atlas Assurance Co. Ltd v Goodman 1955 SR 328. A claim based on a foreign
judgement held to be a claim for a debt or liquidated demand.

Morris v Stern, 1969 RLR 427. A claim for ejectment was held to be a claim for a
debt or liquidated demand.

Dube v Sengwayo HHC 110/91.

A claim for holding over damages in respect of ejectment proceedings was held to be
a claim for a debt or liquidated demand because the damages were easily
ascertainable, simply look at rental value of the property and also the period of which
the lessee is an unlawful occupation.

Philips Properties (Pvt) Ltd v Alpha Brick (Pvt) Ltd HH 11.92.

A claim for the refund of $14 700 due to the defendant’s failure to supply 60 000
bricks. This claim was held not be for damages readily ascertainable and therefore
liquidated.

The following are claims that require specific peformance and are punishable by contempt of
court:

i. an order compelling the defendant to complete and deliver to the plaintiff a

promissory note in the plaintiff’s favour for the sum of 1000 pounds in terms
of deed of dissolution of the partnerships.

ii. an order compelling the defendant to complete and deliver to the plaintiff a
stop order addressed to Tobacco Auctions Ltd authorising the plaintiff to
claim 1000 pounds from the proceeds of the sale of the tobacco for the 1952-
53 season.

Claims a and b although claims for debt or liquidated demand they were also claims for
specific performance and failure to comply with these claims will be punishable by contempt
of court as no official could be substituted for the defendant.

See SA Fire from Accident Insurance & Co. Ltd v Hickman 1955 (2) SA 131. The plaintiff
applied for default judgement on an endorsed summons in which he claimed:

(1) a statement of account duly supported by vouchers of all premiums received

by the defendant

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 (2) the rebate of such account (an assessment of item so as to come to a
determination of an amount owing).

(3) payment of money owing to the account.

(4) order directing defendant to disclose all forms of policies in his

possession issued by the plaintiff and delivered to the defendant.

Held: All of them were claims for a debt or liquidated demand except a claim of
whatever was found owing under the account because it was not fixed.

See also Midsec (Pvt) Ltd vs Ors v Standage HB 64/94. The claim was for $100 000
payment based on a document which had been signed by the defendant in which she
had admitted that she had been fiddling the books and stated as follows on the amount
owed “I would not know the exact amount that I would have taken but Mr Rumbold
has said that if it is close on to 100 000 which could be about right” The claim was
held to be unliquidated because the amount owing was not ascertained but merely
estimated.

b. In claims for delivery or transfer of movable or immovable property if the value does
not exceed the monetary limit. This is despite the fact that there maybe a claim for
the cancellation of any agreement relating to such property.
c. In ejectments actions against the occupier of any house or land or premises provided
its in relationship to the right of occupation and the value of the right of occupation
does not exceed the monetary jurisdiction. The value of occupation is obtainable by
comparing the rentals of comparable premises – if there is a difference there will
multiply it over unexpired part of the lease. ADD cost of moving. See Uguahart v
Bruce 1974 (1) SA 350. Langham Court Property v Mavromaty 1954 (3) SA 742 TPD
d. In claims for a decree of divorce, judicial seperation, or nullity of a marriage
somenised in terms of the Customary Marriages Act [05:07]
e. Claims for division, apportionment or distribution of the movable and immovable
assets of spouse or former spouse married under the Customary Marriages
Act.[CMA]

17
f. Claim for maintenance of a spouse married under the Customary Marriages Act or
claim for Maintenance in terms of Matrimonial Causes Act [05:13]
g. Claims for guardianship and custody of children marriages soleminized in terms of
CMA.
h. Claims for validity, interpretation, effect of oral wills made in terms of s11 of the
Wills Act provided:
1. the testator of the will concerned was resident within the province when made
the will or when he died or
2. The testator of the will was born within the province
3. The majority by number or value , of the beneficiaries under the will resided
within the province when the testator died
4. The will was made within the province
5. If the will award an immovable property, such property ought to be situated
within the province.
i. In all actions not stated herein provided they do not exceed the monetary value of the
court provided the defendant consent if not resident in the province.
j. Where the defendant consented in writing provided the statute allows the court to
preside over such a matter.
k. Where there is a written agreement by the Plaintiff and the defendant to have the
matter heard by the court.
l. The court has jurisdiction on two or more combined claims based on different cause
of action provided the the court can try or determine each and every claim
independently and distinctly similiarly if the any of the claim has been seperately
brought before the court. Splitting the claim is not allowed. However abandonment of
party of a claim is allowed.
m. Claims of confirmation of an interdict or arrest granted pendete lite even joined in
summons for another different relief. Each claim will be then determined distinctly.
n. In claims for the balance of an account . However the court may inquire into and take
evidence if necessary of the whole account even though such account has contains
items and transactions exceeding the amount of jurisdiction.
o. Claims for arrest tamquam de fuga- No order of arrest tamquam suspectus de fuga
shall be made unless the cause of action appears to amount exclusive of costs to be
within the monetary limits of the court, the applicant appears to have no security for
18
 the debt as set in the rules and if the defendant is about to remove from Zimbabwe.
See s12 of the MCA.
p. Claims for interdicts, attachments and mandamentem van spolie- Confirmations by
the court of any attachment or interdict in the judgment in action shall operate as an
extension of the attachment or interdict until execution or further court order of the
court. See s12 of the MCA.
q. Claims for attachments to find or confirm jurisdictions-A court may order attachment
of a person or property to found or confirm jurisdiction against a perigrinus provided
the court has jurisdiction over the claim, ie. Having looked at jurisdiction, cause of
action and also monetary value. This excludes the costs. See s13 of the MCA.
r. In cases for adultery claims brought with its monetary jurisidction it has powers to
establish the fact of the marriage. S14 (1)(i) (a) of the MCA.
s. In cases of claims for maintenance [legitimate or illegimate child] or any inquiry
under the Maintenance Act determine the question of affliation. S14 (1)(i) (b) of the
MCA.
t. In constitutional matters as a referral court. It may refer valid constitutional matters
to the constitutional court on application by a party. See s175 (4) of the Constitution
of Zimbabwe No 20 of 2013.
u. In commercial disputes.

Jurisdiction based on Monetary Limit

The current monetary limit of claims in the Magistrates Court is USD10 00.
In entertaining claims before it the court s jurisdiction will not beousted merely because the
court looked at nay issue that may not be within its jurisdiction Further interest, costs shall
not be considered for the purpose of determining jurisdiction. See s11(g) of MCA. Further the
plaintiffs are not allowed to split one claim into various summons to bring it within its
jruisdiction. See s11(j) of MCA. However the plaintiff is allowed to abandon some claim in
order to bring within jurisdiction of a Magistrate Court. See s11(h) of MCA. Howvere once
abandoned the claim is extinguished. If claim is upheld in part them abandonment firs takes
effect against that part which is not upheld. However a claim exceeding the jurisdiction of the
Magistrates Court may still fall under the Magistrates Court if the Plaintiff deducts the

19
amount being consented to or admitted as liable to whether the claim is liquid or unliquidated
claim. See s11(i) of MCA.
 Nature of matter Monetary Jurisdiction
Cases founded on liquid documents - US$ 5 000,00

Actions for delivery or transfer of movable or immovable property: maximum value of

property-10 000,00

Actions of ejectment: maximum value of right of occupation-10 000

Other actions: maximum value of claim or matter in dispute -10 000,00

Order of arrest tamquam suspectus de fuga: minimum amount of cause of action – 50.00

Order of arrest tamquam suspectus de fuga: minimum amount by which applicant’s security
must fall short of amount of debt -50.00

Order of attachment which applicant’s security must fall short of amount of debt-50.00

Order of attachment of person property to found or confirm jurisdiction : minimum amount of

claim or value of matter in dispute -50.00

Order for rendering of account: maximum amount of claim -10 000

Order for delivery or transfer of property, movable or immovable maximum value of property
-10 000.00

Counter Claims that exceeds jurisdictions

Where a Defendant’s plea or answer to Plaintiff ‘s claim amounts to a counterclaim and the
counterclaim exceeds the jurisdiction of the Magistrate Court , the counterclaim shall not be
dismissed. The court if satisfied that the counterclaim prima facie has reasonable prospects it
may make an order for stay of action for a reasonable time to enable the defendant to institute
proceedings in a competent court. The Plaintiff may still proceed to become a defendant and
file a counter claim in the competent court. The issue of costs incurred in the Magistrate
Court will then be dealt with by the competent court. See s15 of the MCA.
If the defendant does not act within the window granted by the court for him to file an action
in the court of competent jurisdiction the following may happen on application by Plaintiff or
defendant:
a. stay the action for a further reasonable period
b. dismiss the counterclaim- whether the defendant has or not reduced the amount to the
limit of the jurisdiction of the court, whether the counterclaim is withdrawn.
20
In the event of abandonment of the counterclaim or the competent court has granted
absolution from the instance the Magistrates Court upon application may proceed to dismiss
the counterclaim and determine the Plaintiff’s claim.

Circumstances where the magistrates court has no jurisdiction

The Magistrates Court has no jurisdiction under the following circumstances:
a. in dissolution of a marriage soleminised in terms of Marriages Act [05:11]
b. In dissolution of any marriage save for the marriage soleminsed in terms of the
Customary Marriages Act.
c. Seperation from bed and board or of good of spouses of a marrriage solemnized in
terms of the Marriages Act [05:07]
d. A declaration of nullity in relation to a marriage solemnized in terms of Marriages
Act [05:11]
e. The validity or interpretation of a written will or an other testamentary document in
question
f. The status of a person in respect of mental capacity is sought to be affected.
g. An order for specific perfomance without an alternative for payment of damages.
h. The rendering of an account in respect of which the claim does exceed the monetary
limit of the court
i. The delivery or transfer of property movable or immovable exceeding the monetary
jurisdiction of the court.
j. An order for a decree of perpetual silence.
k. Provisional sentence
l. Where the order for a declaratur is sought as to existing rights, future or contigent
right or obligation without a consequential relief of such a declaration.
m. In interpreting oral wills , or establishing valididty of a will made in terms of s11 of
the Wills Act if none of the factors in section 14 (2) of the Magistrates Court exist.
n. In counterclaims that exceeds the monetary jurisdiction of the Magistrates Court.

See S14(1) and (2) of the Magistrates Court Act.

Commencement of Action and Application Procedure

ISSUING OF PROCESS

Filing, Issuing of Process

• All court process, documents and pleadings must be filed with and be issued by the
clerk of court – O8 R1(3)
• Any document issued by the court is supposed to be served on the other party.
• However there are other documents like summons, writs etc which only the
messenger of court may serve.

21
 • Likewise certain documents if not issued by the clerk of court they will not have a
legal effect.
• The clerk of court after issuing the court process should then stamp and sign the
same. Issuing involves; allocation of a case number – Order 3 Rule 1(1), signing and
stamping with the official stamp.

SERVICE OF PROCESS (ORDERS 7 AND 7A)

Service of Process
• Summons must be served by the Messenger of Court or his/her Deputy, or by a person
temporarily appointed as messenger by the magistrate or by a police officer (in cases
where no messenger of court has been appointed) – sections 10 (3) and (5) of the Act
and O7 R3(1). Failure to comply with this requirement invalidates the service –
Wattle Company (Pvt) Ltd v Inducom (Pvt) Ltd 1993 (2) ZLR 108
• Process is valid throughout Zimbabwe and can be served by any messenger – section
23 of the Act. A party who requires the service of the court process by the messenger
of court shall ensure there adequate copies for the court, plaintiff, the defendant and
file copy if the plaintiff is represented.
• Service of process which does not require service by the messenger of court can be
done by the parties themselves – O7 R3(2)
• Messenger of court may call upon any police officer to assist him or her if he or she
meets with resistance in serving process – O2 R2
• Police officer must assist if requested – Commissioner of Police v Rensford and
Another 1984 (1) ZLR 202
Manner of service
• Delivery at physical address business or residential– Order 7 Rule 5(2) and Rules 6
and 7. It may be by:
 Personal delivery to the person or his duly authorised agent.
 Delivery to a responsible person at the residence or place of person on whom
service is to be effected or his chosen address for service.
 Delivery to person’s legal practitioner of record.
 When serving a court process where the person is a minor or person under
legal disability, service should be on the guardian , tutor, curator, or legal
representative of such person. O7R1(2).
 When serving process pertaining to organisations the service may
• Service of process affecting liberty must be personal – Order 7 Rule 5(1)
• Service may be by postal service – Order 7 Rule 7A
Proof of service
Order 2 Rule 3, Order 7 Rule 7C and Form CIV 6A
• Return of service by Messenger or Deputy or police officer is prima facie evidence of
facts stated therein – section 24 of the Act, Gundani v Kanyemba 1988 (1) ZLR 226
(S)
Time of Service

22
Court process is not supposed to be served between 10pm and 6 am. There is exception when
it comes to the arrest of a person or service by post, telefacsimile or courier or email which
can be valid at whatever time it is served.O7R5(1).

Service against the State.

Service of process in proceedings against the state – Order 7A (Rules 1 – 4) as read with the
Fourth Schedule to the Rules

Substituted service
Order 7 Rule 8

COMMENCEMENT OF ACTION PROCEDURE.

Summons –Order 8
Summons commences action procedure. See O8R1. The summons is supposed to be in form
CIV4 , see Order 1 Rule 4(1). The summons should call upon the defendant to enter
appearance to defend . see Order 8 Rule 1 (1). The Defendant will have 7 days to enter an
appearnce to defend if he/she reides within the jurisidction of the court and 14 days if
residing outside the jurisidiction of the court. See O8R(1) (2) The summons is issued by the
clerk of court and it is mandatory for the summons to bear the date of issue. O8R (1) (3).The
original summon is retained by the office of the clerk of court.O8R(1) (4). Shall be signed by
a Legal Practitioner or the Plaintiff although in the case of Municipality, company, or other
incoporated bodies an officer of such and in the case of partnership or group of persons
associated for a common purpose through a member nominated by others to sign the
summons. See O8R2(1) as read with O4R1

Contents of the summons.

The summons should include the following:
 The particulars of claim. O8R2(1)
 The Plaintiff’s christian name and surname , ocupation and residence or place of
business of the Plaintiff. O8R4 (c).
– Address for service and postal address. See Address for service and postal
address – Order 8 Rule 2 (2) and (3)
• Dies induciae -Order 8 Rule 1(2) as read with Order 1Rule 5(2)
 Where the Plaintiff is suing as a cessionary he/she should state its name , address and
description of the cedent, attach the deed of cession and proof of payment. O8R4(d)
 The summons should describe the defendant, the surname and where known his/her
christian name or initials and occupation which the defendant is known of to the
Plaintiff, the residential address, place of business or employment – O 8 R4
 Where the defendant is being sued as a representative, the capacity which he/she is
being sued.
 Where the summons are for a claim based on instrument presentment , the fact and
date of presentment.

23
  Summons with automatic rent interdict – section 38(1) of the Act and Form Civ 8- If
summons are issued for the claim for the rent of any house, land, or premises the
plaintiff may include in the summons a notice prohibiting any person from removing
any other furniture or other effects thereof subject to the plaintiff’s hypothec for rent
until an order relative thereto has been made by the court. The notice will operate as
an interdict against any person who has been served or is aware of the existence of
the notice. The person affected by the notice may apply to have it set aside.

SUMMARY PROCEDURES
The following are summary procedures that are available to a litigant who may wish to obtain
a judgment without going to trial.

a. Consent to Judgment
• Consent is in writing – Order 11 Rule 1(1)
• Defendant may consent to part of the claim – Order 11 Rule 1(1)(b)
• If consents to part of the claim, defendant may enter appearance to defend the balance
– Order 11 Rule 1(4)
• Not necessary to serve summons if defendant consents before instructions to serve –
Order 11 Rule 1(2)
• Defendant not liable for judgment costs if consents within the dies induciae – Order
11 Rule 1(3)
• Original liquid document must be filed by plaintiff before judgment by consent is
entered – Order 11 Rule 4(7)
• Requisites of a liquid document:
• Must sound in money
• Must be signed by the debtor or authorised representative or deemed by law to
be acknowledged
• Amount of the debt must be fixed and definite and appear on the face of the
document – no extrinsic evidence allowed
(See section 11(1)(b)(i) of the Act for examples)
• Clerk of court enters judgment by consent – Order 11 Rule 4(1)(a)
• Clerk of may court refer to court if he/she has doubts on consent – Order 11 Rule
4(8)(b)
(See Washaya v Washaya 1989 (2) ZLR 195 (S) on duty of defendant’s legal
practitioner. N.B. Case from High Court where the equivalent provision is worded
differently)
• In cases of multiple defendants, action may proceed against non-consenting
defendant(s) – Order 11 Rule 4(9)

b. Application for Default for default judgment.

Circumstances in which default judgment may be granted:
a. In default of appearance to defend – Order 11 Rule 4
b. In default of plea – Order 11 Rule 4
24
 c. Upon default at pre-trial conference – Order 19 Rule 1(11)
d. Upon default at trial
e. Upon failure to comply with a procedural order of the court e.g. Order compelling
delivery of further particulars – Order 33 Rule 1(3)(a)
f. Upon failure to respond to an application
• Where there is default of appearance, plaintiff may proceed to file for default
judgment – Order 11 Rule 2
• Where there is default of plea, plaintiff must first deliver notice to plead before
proceeding to file request for default judgment (if there is no response from the
defendant) – Order 11 Rule 3
• The procedure for requesting default judgment involves the following:
• Written request for default judgment – Form CIV 9
• Original liquid document required – Order 11 Rule 4(7)
• Claims for damages require evidence. Plaintiff may file affidavit and
supporting documents – Order 11 Rule 4(5).
• In cases of defective appearance to defend, the clerk of court will require the
plaintiff to give the defendant written notice to rectify the defect within 48hrs
– Order 11 Rule 4(2) and (3)
• No judgment in default of appearance in cases where summons was served by
registered post unless there is proof of delivery – Order 11 Rule 4(4)
• Default judgment entered by clerk of court (Order 11 Rule 4(1)(b) or matter referred
to the court
• Referred to court in the following circumstances:
• Where claim is for damages – Order 11 Rule 4(5)
• Where claim is based on a hire-purchase agreement – Order 11 Rule 4(6)
• Where clerk of court uses his/her discretion to refer – Order 11 Rule 4(8)(a)
• In cases of multiple defendants, action may proceed against non-defaulting
defendant(s) – Order 11 Rule 4(9)
Remedy: Application for Rescission of Default Judgment
• Rescission will not be granted if Applicant was in wilful default – Order 30 Rule 2(1)
• Meaning of ‘wilful default:
– Whether Applicant chose default whilst aware of what he/she was required to
do and the risk of default – Neuman (Pvt) Ltd v Marks 1960 R & N 166; 1960
(2) SA 170 (R)
• Applicant will not be excused if default was a result of the negligence of his/her legal
practitioner but the legal practitioner may be penalised in costs and the matter may be
referred to the Law Society of Zimbabwe for disciplinary proceedings against the
legal practitioner .
– Ndebele v Ncube 1992 (1) ZLR 288 (SC)
– Masama v Borehole Drilling (Pvt) Ltd 1993 (1) ZLR 116 (S)

c. Payment into Court (offers and tenders) O13

Payment into Court (offer)
25
 • Defendant can make a payment into court at any time after service of summons
• Payment into court can be unconditional payment of the full claim – Order 13 Rule 1
or payment of part of the claim as an offer of settlement made without prejudice –
Order 13 Rule 2(1)
• Defendant must notify the plaintiff of the payment into court in writing – Order 13
Rule 3
• Unconditional payment into court results in automatic stay of action except for
recovery of costs not included in the payment – Order 13 Rule 1
• Plaintiff can either accept or reject a payment into court in offer of settlement
• Plaintiff accepts payment into court in offer of settlement by a written request to the
clerk of court for payment to him/her of the amount paid into court – Order 13 Rule
2(2)
• Request must be made within 7 days of receipt of notice of payment – Order 13 Rule
2(2)
• Proceedings are stayed upon acceptance of payment by plaintiff except for recovery
of costs not included in the payment – Order 13 Rule 2(2)
• A plaintiff who accepts payment into court is entitled to recover costs incurred up to
the time of payment into court. The same applies where the there is unconditional
payment into court. Exception: Where payment was in offer of settlement and the
defendant indicated that his offer was inclusive of costs – Order 13 Rule 5

Payment into Court (Tender)

• A defendant who pleads tender must pay into court the amount tendered if such
amount has not yet been paid to the plaintiff – Order 13 Rule 7
• Differences between tender and payment into court in offer of settlement include:
• Tender can be made before institution of proceedings
• Tender must be pleaded
• Tender includes admission of liability

Ancillary issues relating to offers and tenders

• Amount paid into court as offer of settlement or tender (and not accepted by the
plaintiff) will only be paid out upon:
• Judgment by the court declaring who is entitled to it – Order 13 Rule 8(a); or
• The written consent of the parties – Order 13 Rule 8(b).
• In claims for damages, the fact that there has been payment into court in offer of
settlement or tender (rejected by plaintiff) should not be disclosed to the court until
the court has pronounced judgment on the claim (issue of liability and the amount
due, if any) – Order 13 Rule 9
• Fact will be disclosed before an order of costs is made
• In all cases, plaintiff shall be penalised in costs if he/she fails to recover more than the
amount that was offered in settlement or tendered – Order 13 Rule 6
• Unclaimed money paid into court will be returned to the defendant after one (1) year
unless the matter has been set down for trial – Order 13 Rule 10(1)
26
 • Will be paid into the Guardian’s Fund if defendant cannot be found – Order 13 Rule
10(2)

d. Summary Judgment
• Purpose is to enable a plaintiff with a clear and unanswerable claim to obtain
judgment without the expense of a trial – Beresford Land Plan v Urquhart 1975(1)
RLR 260 or 1975 (3) SA 619
• It denies the defendant the benefit of the fundamental principle of audi alteram
partem therefore it is only granted for clear claims – Chrismar v Stutchbury and
Another 1973 (1) RLR 277
• Available for any one or combination of the following claims:
• It is available to plaintiff or plaintiff in reconvention. [plaintiff in reconvention
– a defendant who would have claimed in reconvention]
• It is only available in respect of particular types of claims R1(i) a-e
• Claims of liquid document
• Claims for a liquidated amount in money both fixed and ascertained or it is
capable of easy assessment [special and prompt assessment] it would include
all claims of money except claims of damage unless are agreed between the
parties.
• Claims for delivery of specified movable property.
• Ejectment
• It must be applied for within seven days of the defendants appearance to
defend
• Anything that needs to be doe from date of appearance will run from date of
delivery O9 r(1)
• If document us liquid there must be an affidavit verifying cause of action
• With the affidavit, the deponent [plaintiff] must state that in his belief there is
no bonafide defence and to the action and appearance is solely for the
purpose of delay
• The affidavit is made by plaintiff if can swear positively
• The deponent is also allowed in his / her affidavit to state that there is no
bona fide defence to the action.
• Can attach to affidavit any documents which prove defendant has no bona
fide defence.
27
 •
(Order 15 Rule 1(1)(a) – (e)
• Procedure for applying for summary judgment involves:
– Written application on seven (7) days’ notice delivered not more than seven
(7) days after appearance to defend – Order 15 Rule 1(2)
– Affidavit required if the claim is illiquid – Order 15 Rule 1(2)(a)
– Copy of liquid document required if claim is based on a liquid document –
Order 15 Rule 1(2)(b)
• Options available to defendant upon application for summary judgment:
– Pay into court – Order 15 Rule 2(1)(a)
– Give security – Order 15 Rule 2(1)(b)
– Satisfy the court by affidavit that he/she has a good prima facie defence
• Meaning of good prima facie defence:
– Triable issue of fact – must allege facts which would constitute a valid defence
to the claim if he succeeded in proving them at trial – Rex v Rhodian
Investments Trust (Pvt) Ltd 1957 (4) SA 632 (SR)
– Triable (arguable) issue of law – Shingadia v Shingadia 1966 RLR 285
• Application of good prima facie defence requirement:
– Jena v Nechipote 1986 (1) ZLR 29
– Dickson v Addison S160/87
• Summary judgment will be entered (in default) if the defendant does not respond to
the application for summary judgment – Order 15 Rule 3(1)
• No evidence may be adduced by the plaintiff at the hearing of the application for
summary judgment. The plaintiff’s case will rest on the affidavit filed in support of
the application for summary judgment or the liquid document sued upon – Order 15
Rule 2(2)(a)
• The plaintiff may cross-examine the defendant’s witness(es) if the defendant gives
oral evidence – Order 15 Rule 2(2)(b)
• Court will give leave to defend if defendant pays into court or gives security or
satisfies the court that he/she has a good prima facie defence to the claim – Order 15
Rule 3(2)
• Leave to defend part of the claim may be granted where the defendant satisfies the
court that he/she is entitled to defend part only – Order 15 Rule 5(b)
• In cases of multiple defendants, leave to defend may be granted to one and not the
other(s) – Order 15 Rule 5(a)
Upon receiving summary judgment / options O 15 R 2(1)
 Pay into court amount sued for together with amount for costs [assumes
payment of money]
 To give security to satisfy any judgment which can be given against him in
the action

28
  To satisfy the court by affidavit or supported by oral / viva voce evidence to
satisfy court that he has a “good prima facie defence”

 The defendant must allege facts which it proved at the trial would entitle him
or her to succeed in his defence at the trial Rex v Rhodian Investments Trust
Pvt Ltd 1957 R & N 723 / SA (4) 631
 An arguable issue of law – triable issue of law Shingadia v Shingadia 1966
RLR 285
 If defendant in convention has a counter-claim constitutes a prima-facie case:
Wilson v Hoffman & Ano 1974 (1) SA

Robert John Martin Dickson v Clifford Patrick Addison SC160/87

Plaintiff sued the defendant in the Magistrates court for an order of ejectment.
Payment of US$750 being rental dues. Defendant entered appearance to defend and
plaintiff requested for summary judgment. Defendant filed an affidavit opposing
summary judgment. His defence was that had counter claim and the counter claim
was for an order seeking transfer of property to him on basis of verbal agreement of
sale and the counter claim was pending in the High Court and had reached pre-trial
conference stage. Magistrate granted summary judgment and defendant appealed to
Supreme Court.

The Supreme Court said the defendant had misunderstood the law and said his
claim at the High Court only made a prima facie case for the transfer of the property
to him but since the alleged sale was a cash sale, the defendant was not entailed to
occupancy of the property prior to transfer, therefore the defendant’s right of
occupation of property was only under lease agreement and since was in breach of
contract of lease, the plaintiff was entailed to ejectment him and a summary
judgment. Appeal was dismissed with costs.
The Court should not look at the probabilities of success or the defence raised by the
defendant. Fork Holdings Pvt Ltd v Newman Chiadzwa HC 50-86

29
High Court had stated that the defendant raised by defendant was so improbable on
the facts that it could not be a good prima facie defence. Supreme Court said
applications for summary judgment are not decided on the balance of probabilities,
however strong, unless court is satisfied that plaintiffs case is unanswered. It is not
entitled to grant summary judgment.

If defendant wants to satisfy the court having been satisfied, then court shall give
leave to defendant and the action shall proceed as if no application for summary
judgment had been made.

Issues of evidence at hearing

Only evidence allowed is the affidavit or the product of the liquid document and the
plaintiff is not allowed to cross-examine any witness. The witness called by
defendant can be examined by defendant because there not a trial.

Use of evidence O15 R4

Evidence should not be used, therefore exceptions:
If there is consent that it is being used in favour of party on whose behalf it was
given.

In cases of partial success O15 R4

i. Where there is one defendant and raise a prima facie defence but on part of
claim
Should give leave to that part were the defendant has raised a good prima
facie defence.
ii. Where there are more than one defendant, done of them manages to satisfy
the court and court would give leave to the defendant with prima facie O15
R5(b)

30
Exceptions (General)
• Definition: An exception does not raise a defence on the merits but raises a technical
objection to the pleading on the grounds that it is bad in law either because it does not
disclose a cause of action or because it does not disclose a defence
• Purpose: To force an amendment so that the pleading properly reflects the cause of
action or defence or, failing this, to dispose of the claim or defence
• Grounds of exception:
• Failure to disclose a claim or defence through:
Making a claim or defence which is not acceptable at law or omission of an essential element
of the cause of action or defence (A. Lane v Eagle Holdings (Pvt) Ltd S-126-1985)- An
appeal from decision of Magistrate who had upheld exception. Plaintiff claimed
payment of 2000 being balance of a bonus which defendant agreed to pay the
plaintiff in respect of services rendered by plaintiff to defendant as MD of the
subsidiary company of the defendant from 1st February 1982 to 31st January 1983.
The defendant excepted to the plaintiffs claim as stated in summons on basis that the
alleged agreement to pay plaintiff bonus was illegal and unenforceable in that it
contravened the Emergency Powers (Control of Salary and Wage Increases)
Registration Harare of 1981.
It was not apparent from the plaintiffs summons that the bonus represented an
increase of what the plaintiff earned. Let alone that the increase was of such a
magnitude as to offend against the regulations. Therefore Plaintiffs summons was
not excipiabe. Appeal was allowed with costs.
 The pleading being vague and embarrassing to an extent that the excepting party does
not know the case he or she has to answer. Vagueness or embarrassment must go to
the root of the claim or defence otherwise must seek further particulars or apply to
strike out (Salzmann v Holmes 1914 AD 152)

Exception to Summons
• Grounds of exception to summons – Order 14 Rule 2:
- The defendant may except to the summons on one or more of the following
grounds only—
(a) that it does not disclose a cause of action;
(b) that it is vague and embarrassing;
(c) that it does not comply with the requirements of Order 8;
(d) that it has not been properly served;
31
 (e) that the copy served upon the defendant differs materially from the original

Exception to Plea
• Grounds of exception to plea – Order 16 Rule 11:
- A plaintiff may except to the plea on one or more of the following grounds
only—
(a) that it does not disclose a defence to the plaintiff’s claim;
(b) that it is vague and embarrassing;
(c) that it does not comply with the requirements of Order 16.

Exception (General)
• Exception to summons heard together with application for summary judgment or set
down separately if no application for summary judgment – Order 14 Rule 7
• Exception to plea may be set down for hearing by either party – Order 16 Rule 15
• Court will not grant exception unless can prove prejudice – Order 14 Rule 5(1)
(exception to summons) and Order 16 Rule 12(1) (exception to plea)
• Can apply for amendment if exception granted – Order 14 Rule 8 and Order 16 Rule
16
• Dismissal of claim (Order 14 Rule 8) or judgment for plaintiff (Order 16 Rule 16) if
exception granted and no application for amendment or application for amendment
refused
• Matter proceeds normally if exception dismissed.

Procedure
1. Court does not uphold to an exception unless satisfied that there could be
prejudice. O14 R5 (1), O16 R12(1)
2. Where none compliance with the rules is the basis, then excipient must give
notice to the defendant/plaintiff indicating in what ways it is not compliant
with the rules O14 R5 (2), Order 16 R 12 (2)
3. For vague and embarrassing, then prior to taking exception, the excipient
must give notice giving them an opportunity to remove a cause of complaint
O14 R5 (3), O16 R 12(3)
4. The court can be set down in a special hearing O16 R 9 & R15. The court can
decide to uphold the exception then the party whose documents were
excipiable can make an application to amend and if application is granted
than matter will proceed on the basis of the amended summons or plea. If the

32
 application to amend is dismissed then in the case of summons then Court
can dismiss the claim on application by defendant as for O14 R8
In the case of a plea, application is refused then court can give judgement O16 R16

Application to Strike Out

• Defendant may apply to strike out a portion of the summons, specifically:
(a) any of two or more claims in a summons which, not being in the
alternative, are mutually inconsistent or are based on inconsistent averments
of fact;
(b) any argumentative, irrelevant, superfluous or contradictory matter
contained in the summons.
(Order 14 Rule 6(1); Green v Lutz 1966 RLR 633)
• Plaintiff may apply to strike out a portion of the defendant’s plea, specifically:
(a) any of two or more defences which, not being pleaded in the alternative,
are mutually inconsistent;
(b) any argumentative, irrelevant, superfluous or contradictory matter which
may be stated in a plea.
(Order 16 Rule 14(1)
• Procedure on exception to summons applies mutatis mutandis to application to strike
out from the summons – Order 14 Rule 6(2)
• Procedure on exception to a plea applies mutatis mutandis to application to strike out
from the plea – Order 16 Rule 10 as read with Order 16 Rule 14(2)
•
• When does one apply to strike out rather than except?
• Suazmann v Holmes 1914 AD 152
• The distinction between an exception and application to strike out is clear. An
exception goes to the root of the entire claim or defence may be. The excipient
alleges that the pleadings objected to, taken as it stands is legally invalid for
its purpose. Whereas individual sections which do not comprise an entire
claim or defence but are only portions of one must if objected to be attacked
by motion to expunge.
•
• If defeat goes to the root of the claim or defendant it does not but it is
superficial then can apply to strike out [motion to expunge]
• Procedure – just same as exceptions O14 R 6(2), O16 R 14

33
TRIAL PROCEDURE
Claim in Reconvention
Definition: Defendant’s claim against the plaintiff
• Rules on claim in convention apply mutatis mutandis except:
– Not necessary for plaintiff to enter appearance – delivers plea if intends to
defend the claim in reconvention
– Times that run from appearance run from date of delivery of claim

(Order 9 Rule 1)
• Defendant may make any claim in reconvention whether:
(a) liquid or illiquid; or
(b) liquidated or unliquidated; or
(c) it arises out of or is connected with the subject-matter of the claim in
convention or not;
• Claim in reconvention must be delivered within 7 days after appearance and provide
the same particulars as summons – Order 9 Rule 2
• Claim in reconvention shall not prejudice the plaintiff’s right to apply for summary
judgment – Order 9 Rule 4
• Claim in reconvention within the jurisdiction will be treated as a cross-action and the
court will pronounce judgment on both in the same action – Order 9 Rule 3(1)
• Claim in reconvention and claim in convention may be tried separately but judgment
must be given pari passu

Claim in Reconvention in Excess of Jurisdiction

• Procedure to be followed:
• Defendant applies for claim to be pronounced in excess of jurisdiction and for
stay of action – Order 9 Rule 3(2) as read with section 15(1) of the Act
• Court orders stay of the action if satisfied that the claim exceeds its
jurisdiction – Order 9 Rule 3(3) as read with section 15(1) of the Act
• If no application for stay is made, or application is dismissed and there is no
abandonment, claim in excess of jurisdiction is dismissed – Order 9 Rule 3(4)
• Upon stay, defendant must institute proceedings in court of competent jurisdiction
within the period stipulated by the court – section 15(1) of the Act
• Plaintiff will transfer his/her claim to the competent court as a counterclaim – section
15(1) of the Act
• Magistrates Court may grant an extension of the period of stay of action – section
15(2) of the Act
• Magistrates Court will dismiss the counterclaim (claim in reconvention) and proceed
to determine the claim in convention if defendant fails to institute proceedings in the
competent court or the proceedings in the competent court are discontinued – section
15(3) of the Act

34
NOTICE OF APPEARANCE TO DEFEND
 Written notice of intention to defend which defendant must file in order to
defend claim
 O10 – rules on appearance
 Rule 1 sets out the dies induciae 7 days or 14 days, from day of service
 The court will make such order in regard hat is just
 In claims for damages there’s a prerequisite to application of O13 6 and that is
in O13 9
 The amount paid into court must not be made known to the Court until
judgment on claim has been given
 In claims for damages, amount is not fixed, court should not be influenced
from amount offered in settlement
 As soon as judgement is given, then the sum offered should be made known
 There’s a time limitation on how long Court can decide, which is one year
from date of payment
 If matter has been set down for trial then can keep amount claimed for longer
 Clerk of Court returns money to defendant and notice to plaintiff and money
is returned to plaintiff. If defendant cant be found, the money is paid in
guardians found order 13 8
 Parties can agree that money be released through written consent that has
agreed to payment into guardians fund.
Failure to appear: The Plaintiff can seek default judgment

FURTHER PARTICULARS
Further Particulars
• Three (3) types of request for further particulars :
– Request for copies of documents on which the claim is founded – Order 12
Rule 1; Estate Late Zagorie v Lategan 1945 CPD 360
– Request for particulars to any pleading for purposes of pleading – Order 12
Rule 2
– Request for particulars to any pleading for purposes of preparing for trial –
Order 12 Rule 3
(See Order 12 Rule 4 for definition of ‘pleading’)

35
  Defendant is entitled copies of the accounts or documents upon which the
plaintiffs claim is founded [documents basis of claim] dishonoured cheque,
written acknowledgement of debt
If plaintiff is suing on purchase price, then invoices are not particulars which
claim is founded
Estate Zagoric v Lategan 1945 CPD 360 O12(1)(1)

• How much particulars?

• Thence the basic rule of pleadings is that parties have to plead facts and not
evidence: that’s why pleadings are not in the 1st person.
• Even though pleading can clearly give facts, the courts can require or give
order to enable the other party to clearly understand what case, he/she has to
answer.

– The Citizen (Pvt) Ltd v Art Printing Works Ltd 1957 (3) SA 383 (R) or 1957
R&N 500
Involved an application for an order compelling plaintiff to supply further and
better particulars. The plaintiff’s claim was for printing work done and for paper,
stationery and printers supply sold to defendant. The details of each invoice and
amount charged were annexed to the defendant.

The defendant requested further particulars and was supplied further particulars.
Defendant requested for further and better particulars which were denied.
i. Plaintiff had charged 42% of costs to cover heads and for those the defendant
wanted to know the following. How much was allowed for 42% charged
overheads.
ii. Salaries [description and number of employees]
iii. Other office expenses
iv. Advertising how much of the advert expenses were debited to plaintiff
v. Depreciation [what is meant, etc]
vi. Interest
vii. Bank charges
36
Held
It should be remembered that it is a fundamental principle of all pleadings that the
statement of material facts should be in summary form.
Even where the pleading is not defective by reason of the omission of any material
fact, the Court will order particulars if it considers that as a matter of fairness, they
should be given.

The procedure however was not designed to enable one party to carry out
inquisitorial forays upon adversaries nor should it be regarded as a challenge to the
subtle and over curious. As a matter of fairness, defendant was not entitled to
information which had been requested. Therefore the application compelling further
particulars was dismissed with costs.

– Time Security (Pvt) Ltd v Castle Hotel (Pvt) Ltd 1972 (3) SA 112 (RAD) or
1972 (1) RLR 155 (A)
• Plaintiff sued defendant in the Magistrate Court for $85,63 cents, amount
alleged due by defendant to the plaintiff and the cause being for services
rendered. Provision of a security guard for defendants’ premises. Defendant
in its plea had started that the security guard supplied was not carrying out
duties properly and not providing any real security at all. Plaintiff requested
further particulars to the plea and wanted to know full details of the alleged
failure by security guard to carry out duties properly and to provide real
security. Defendant refused to furnish particulars furnished. The plaintiff
applied for order compelling delivery of particulars. The Court refused to
grant and plaintiff appealed.
•
• On appeal it was emphasized that ability to plead means “ability to plead
properly and also said as litigant is supposed to be put in a position to plead
in the dark. There is no hard and fast rule regarding particularity required.
Each case must be judged on its own merits. Litigant must not be put in the

37
 embarrassing position of being forced to resort to bare denial by lack of
particularity. A denial which in the light of particularise supplied at a later
stage. He will be obliged to withdraw. He should be in the position to
honestly deal with the matter and either admit or deny an allegation in the
light of particulars furnished.

• HELD
• That the plaintiff was entitled to the particulars requested because plaintiff
was a company and could not be expected to supervise all employers hence
was incumbent upon defendant to inform the plaintiff the failure of guard
and needed to know in what way the guard was not performing duties or did
he report and fail to perform. Appeal was allowed with costs.

 Within seven [7] days of receipt of notice O12 (1)(2). Failure to comply; then
application for notice can make Order to compel for delivery of particulars.
Inadequate further particulars, the party requesting can request for further
and better particulars.

– Motaung v Federated Employers Insurance Company Ltd 1980 (4) SA 274

(WLD)
• What happens if request for further particulars is not complied with?
– Total non-compliance – application for an order compelling delivery of further
particulars (Order 33 Rule 1(2)
– Inadequate particulars – request for further and better particulars
• Consequence of failure to comply with an order compelling delivery of further
particulars:
– Dismissal of plaintiff’s claim
– Default judgment against defendant
(Order 33 Rule 1(3)(a))

NOTICE TO PLEAD
PLEA (ORDINARY)
Plea –

38
A plea is a defendants’ answer tot he plaintiff’s declarations or particulars of claim.
The plea must set out the defendants defence and must deal with the allegations of
facts made.

The defendant either admit allegations or confess avoid R 20 & Order 16. A Plea of
denial does not mean that all allegations are denied. Normally some allegations are
admitted or denied, e.g. admitting the plaintiff’s name and address. The plea would
be classified as plea of denial if essential allegations are denied, e.g. in a delictual
arising from motor vehicle accident, the defendant may admit driving the car that
collided with plaintiff but denies that the accident was a result of negligence.

It is important to show which allegations are admitted because the Plaintiff will not
be required to adduce evidence on admitted facts.
However you should be careful on making admissions because once made it cannot
be withdrawn [bound] and it can only be withdrawn with leave of the Court and it
decided whether a party should ne allowed to be withdraw, the court takes account
of the following factors:
a) Whether the application is bona fide
b) Whether prejudice to plaintiff can be cured by award of costs.

In determining the bona fide of the application for the withdrawal the court will
consider the circumstances under which it was made DD Transport v Abbot 1988
(2) ZLR 92
A party is deemed to be admit facts which are necessarily implied by what is
expressly admitted e.g. a defendant who administer that a driver was acting within
scope of employment with defendant is deemed to admit that the defendant was
employed by him at the time of the accident.

Time for delivery

• Defendant must deliver plea within 7 days after:
(a) entry of appearance; or
(b) delivery of documents or particulars in terms of rule 1 or 2 of Order 12; or
39
 (c) if application for summary judgment is made, the dismissal of such
application; or
(d) the making of an order giving leave to defend; or
(e) if exception or motion to strike out is set down for hearing in terms of rule
7 of Order 14, the dismissal of such exception or motion; or
(f) any amendment of the summons allowed by the court at the hearing of such
exception or motion;

(Order 16 Rule 1(1))

Plea – Form and Content

• Must be dated and signed by the defendant or his legal representative – Order 16 Rule
1(2)
• Must not be a bare denial – Order 16 Rule 4
• Plea of tender must comply with Order 16 Rule 5
• Plea must admit or deny or confess and avoid all the material facts alleged in the
summons – Order 16 Rule 2(a)
• Examples of confession and avoidance:
• Plea of tender
• Set – off
• Nature of defence and material facts on which it is based must be stated – Order 16
Rule 2(b)
• Presumptions in relation to admission and denial of facts – Order 16 Rule 7

Denial Plea:
It is an express contradiction of an allegation of fact and must meet the following
requirements
i) Must be clear and meeting substance of fact being denied
ii) Must not be too general where a number of allegations are contained in one
sentence , the defendant must meet each allegation of denial, e.g. paragraph 4
of declaration of Summons where it was said:
On or about 16 June 2003 and at Harare the Defendant published defamatory words
concerningthe plaintiff, Peter Nyoka.
For the Defendant to plead and say: “It is denied” – these are bare denials and
its too general and not allowed at law.
The particulars of denial are not stated therefore it is defective because it does not
show that the defective because it does not show that the defendant published

40
defamatory words at Harare and whether such words were attributed to Peter
Nyoka.

The defendant should deny allegations separately other wise denial would be vague
or you may say: “The Defendant denies each allegation contained in paragraph 4”

Effect of Denial
a) Puts the facts denied together with the necessary implications which follow
from it in issue that Court would have to determine
b) Advising the plaintiff that would have to prove facts

If fact is denied which should have been admitted and this lengthens the trial the
defendant would be penalised by way of paying wasted costs. The same will apply
to the plaintiff.

The defendant should deny only allegations linked to his defence but it is safe not to
deny too much rather the rule in the Magistrate Court is that what ever is not denied
either expressly and by implication and it is not inconsistent with the plea is taken to
be admitted. O16 r 7

Plea of Confession and Avoidance

This means that the defendant would admit all of plaintiff’s allegations and then
allege and new set of facts which destroys the effect of allegations made by plaintiff,
e.g. set off and estoppels, “I owe him $20 000 but he owes mw $50 000”.

If the defendants defence is not clear from the denial or confession of avoidance he
must set out the material facts on which he relies O16 R 26, e.g. if plaintiff alleges
that defendant acted wrongfully or unlawfully, the defendant cannot simply deny
this fact. He must set out fact he relies upon in claiming that he did not act
wrongfully or unlawfully.

41
Counter Claims of claim in Reconvention Order 9
In practice, the plea and claim in reconvention are attached together and ban be filed
separately, may arise out of same transaction on which plaintiff’s claim is based or
might be separated. See O9, R 3 (1)(c).
The claim in reconvention can be filed at same time with plea but claim of
reconvention must set out in defence [start by answer then plea – counter claim]. The
Plaintiff need not enter an appearance.

A claim in reconvention must be delivered within 7 days from day of delivery to

plaintiff.
A claim in reconvention shall not prevent plaintiff from summary judgment or a
default judgement. If the claim in reconvention is separate from claim in convention
judgment must still be handed at the same time. It doesn’t matter differences.
Plaintiff cannot counter claim against defendant but the plaintiff can however seek
to amend summons.

The withdrawal, dismissal or stay of the claim is convention will not prevent the
continuation of claim in reconvention. Where counter claim exceeds courts
jurisdiction, the defendant has to apply for stay of action and it has to be read with
conjunction of SI 15 Act Magistrates Court.

The object of stay is to enable the defendant to institute action in a competent court.
The matter is stayed for a reasonable time provided the defendant ha a prima facie
claim. The plaintiff may transfer his action to the High Court and it will decide on
question of wasted costs and the Magistrate Court has power to extend the stay of
execution or can dismiss in the event of the defendant not proceeding to institute
action in the High Court or where the Defendants action is stayed, dismissed,
withdrawn, abandoned or if the competent court has granted absolution from
instance. If the defendant doe not refer counter claim to competent court he may

42
abandon part of claim so that his counter claim maybe within jurisdiction of
Magistrates court. R3(4)

SPECIAL PLEA
Special Plea
• Special Plea
– Definition: Plea that does not raise a defence on the merits but sets out some
special or technical defence
– Purpose: To delay proceedings (dilatory/plea in abatement) OR To put an end to
(quash) proceedings (declinatory/ plea in bar)
• Essential difference between special and exception:
– Defence raised by special plea may be established by evidence outside the
summons; On exception the defence raised must appear ex facie the summons i.e.
no extrinsic evidence allowed
• Examples of special pleas
Special plea in bar [declinatory special plea]: is one which is successfully
pleaded has the effect of putting an end to the proceedings – quashing, for
example:
 No jurisdiction
 Plea of prescription [prescription act]
 Res judicata: same matter has been decided by court of competent jurisdiction
[same cause of action, parties, etc]. Requirements for res judicata to succeed,
Flood v Taylor 1978 RLR 230 .Res judicata- (Mvaami (Pvt) Ltd v Standard Finance
Ltd 1976 (2) RLR 257; Flood v Taylor 1978 RLR 230; Owen-Smith v Owen-Smith
1981 ZLR 514; Kawondera v Mandebvu S-12-2006
i. It has to be the amend parties T v D
ii. Same cause of action
iii. Court that decided matter must be of competent jurisdiction

 Prescription (Prescription Act, Chapter 8:11)

Special plea in abatement [dilatory]: is one which successfully pled has effect of
delaying the proceedings until the defense has been rectified, for example
 Lack of locus standi
 Lis pendenis-----Requirements for this plea:
43
 i. The mater is pending in another court, competent jurisdiction
ii. Same cause of action
iii. Competent jurisdiction
Robert Martin Dickson v Clifford P. Dickson – raising a plea of lis pendenis
does not necessarily mean that the proceedings are stayed. The court looks at
the balance of convenience.

 Lack of locus standi in judicio i.e. legal capacity to institute proceedings (Edward v
Woodnnutt NO 1968 (4) SA 184 (R)
 Procedure
 It is raised in the same way as the ordinary pleas O16, the only difference is
that the special plea can be set down for a hearing O16 r 9. If court uphelds
the Special Plea, the proceedings would have to be stayed until rectified.

 If Court does not uphold, then Defendant would plead to the merits and issue
continues as if there was no special plea.

REPLY
Reply
• Definition: Plaintiff’s response to the allegations of fact contained in the defendant’s
plea.
• Not necessary unless the defendant raises new facts in his/her plea
Reply (Procedure)
• Must be delivered within 7 days after delivery of the plea or further particulars to the
plea – Order 17 Rule 1
• Presumption of denial of facts alleged in the plea if plaintiff does not deliver reply
timeously – Order 17 Rule 3
• Rules on plea apply mutatis mutandis to reply – Order 17 Rule 2
• Upon the delivery of reply, pleadings are closed and there is joinder of issue
• Closure of pleadings can also take place where time within to reply expires R4

44
CLOSE OF PLEADINGS
Close of Pleadings
• Pleadings closed upon delivery of reply or 7 days after delivery of plea if no reply –
Order 17 Rule 4
Effect of closure of pleadings
1. The parties will not be allowed to proceed to discovery before the closure of
pleadings
2. Parties will not proceed to pre-trial conference before closure of pleadings
3. Parties cant set down matter for trial
4. Claim an be transmitted to being of plaintiff if he dies after closure of
pleadings [but not if personal, e.g. divorce]
5. The parties rights are regarded as frozen litis contestatio.

DISCOVERY STAGE.

Discovery of Documents
• Purpose: To enable parties to know the documents that are relevant to the action that
are in their opponent’s possession or control thus avoiding surprise or trial by ambush
• Discovery is compulsory in the Magistrates Court, R1, and either party may
but if called upon, party must comply with request
• It is good practice to always ask for discovery and a party must discover not
only documents to use but all relevant documents including those adverse to
his case.
Discovery of Documents (Procedure)
• Written notice to make discovery after close of pleadings – Order 18 Rule 1(1)
• Party receiving notice must respond within 7 days by delivering a schedule of
documents – Order 18 Rule 1(2)
• Schedule should separately list documents for which privilege is claimed (Order 18
Rule 1(3)(a) and state the grounds on which privilege is claimed (Order 18 Rule
1(3)(b)
There is no fixed format for setting out the discovery schedule
In practice we set out documents into categories:
- First part – contains documents which the other party expects

45
 - Second part – contains documents for which privilege is claim and must be
separately listed. The grounds for claiming privilege must be set out. If have
bulky documents of the same type e.g .correspondences, they may be listed as
follows;
“A bundle of correspondences of such, date from page 16/48”

Discovery of Documents (Privilege)

• Types of
• privilege that can be claimed include:
– Legal professional privilege – covers;
• all communication between a legal practitioner and his/her client
• Any document prepared for the purpose of existing or contemplated
litigation and with a bona fide intention of laying it before a legal
practitioner for the purpose of obtaining his/her advice or to enable
him/her to conduct the client’s case
– (Kerwin v Jones 1957 R&N 432 or 1957 (3) SA 181 (SR)
– Boyce v Ocean Accident Guarantee Corporation Ltd 1965 RLR
668)

State privilege: Claimed by the state in respect of documents whose disclosure is not in the
public interest. May be claimed even if the state is not party to the action. see(Association
of Rhodesian Industries and Others v Brookes and Another 1972 (1) RLR 144 or 1972 (2)
SA 680 (R))
– Marital Privilege.
Consequence of failure to disclose document:
– Will not be allowed to use it without the leave of the court but the other party
may use it to cross-examine a witness – Order 18 Rule 1(4)
• Inspection of disclosed documents:
– Each party shall allow the other to inspect disclosed documents and take
copies – Order 18 Rule 2
• Notice to produce documents at trial:
– Either party may give the other notice to produce disclosed documents at trial
– Order 18 Rule 3(1)
– Notice to produce has same effect as a subpoena – Order 18 Rule 3(2)

NOTICE OF SETDOWN-PRETRIAL CONFERENCE

PRE-TRIAL CONFERENCE
Pre-Trial Conference
• Purpose: To try to reach out of court settlement or, if no settlement, identify the issues
for trial and agree on ancillary issues
46
 •
Can be convened in 4 ways i.e. :
• By parties themselves at a mutually convenient time and place – Order 19
Rule 1(1)
• Before a magistrate by consent of the parties – Order 19 Rule 1(3)
• By the clerk of court (to be held before a magistrate) on the instructions of a
magistrate – Order 19 Rule 1(4)
• As directed by a magistrate upon application by any party – Order 19 Rule 1
(6)
• Issues to be discussed include, inter alia, :
• Attempt to reach out of court settlement on all or any matters in dispute
• Identification (definition) of the real issues for trial
• Obtaining of admissions of fact and documents
• Estimation of the probable duration of the trial
• Arrangement for the services of an interpreter if needed
(Order 19 Rule 1(2))
• Pre-trial conference minute:
– Drawn by the parties if they hold the pre-trial conference on their own – Order
19 Rule 1(7)
– Drawn by the magistrate if pre-trial conference is held before a magistrate –
Order 19 Rule 1(10)
Upon the conclusion of PTC held before Magistrate, the Magistrate shall:
a) Record any decision at PTC and any agreement reached
b) May make an order limiting issues for trial to those not disposed of by
admission of agreement
c) Magistrate may give directions to any matters referred to in b).
d) Shall record refusal of any party to make an admission, reach an agreement
together with reasons thereof.
If a party fails to comply with direction of Magistrate, the court may on application
dismiss claim / strike out application. Purpose of PTC1
• Settlement of any matter in dispute:
– Magistrate may make order embodying the terms of settlement upon
application by the parties – Order 19 Rule 1(8)
• Default at pre-trial conference before a magistrate or failure to comply with directions
given by a magistrate results in dismissal of claim or default judgment – Order 19
Rule 1(11)

1
Zimbabwe Electricity Transmission & Distribution v Zuviya SC20/2013

47
SET DOWN FOR TRIAL
Set Down for Trial
• Plaintiff delivers notice of appeal on dates approved (provided) by the clerk of court –
Order 19 Rule 2(1)
• Defendant can deliver notice of trial if plaintiff fails to do so within 14 days after the
pre-trial conference
• Delivery of notice of trial shall ipso facto operate to set down ant counterclaim –
Order 19 Rule 2(2)

TRIAL
Trial
• Venue: Trial takes place at court-house from which the summons was issued unless
the court orders otherwise – Order 19 Rule 3 as read with section 5(4) of the Act
• Language and public access: Proceedings to be in English and in open court – section
5(2)(a) of the Act. Court may restrict access in terms of the Courts and Adjudicating
Authorities (Publicity Restriction) Act, Chapter 7:04
• Witnesses must not be present in court before they give evidence. However, the
presence in court of a witness before testimony does not affect the admissibility of
his/her evidence but its credibility
• Order 19 Rule 4
• S v Ntanjana 1972 (4) SA 635 (E)
• Court may require parties to deal with one issue first and dispose of the whole matter
on that issue – Order 19 Rule 5(2)
• Court may dispose of matter on issue of law without hearing evidence – Order 19
Rule 5(4)
• If the dispute is a question of law and the parties are agreed on the facts, the facts may
be admitted without evidence and the court may then proceed to deal with the dispute
of law – Order 19 Rule 5(3)

Trial (Order of presentation of evidence)

Determined by burden of proof as reflected by the pleadings and based on the “he (she/it)
who alleges must prove” rule - Nyahondo v Hokonya 1997 (2) ZLR 457 and Astra
Industries v Chaburuka SC 27/2012
Plaintiff adduces evidence first if burden of proof is upon him/her – Order 19 Rule 6(1)(a)
Plaintiff shall first adduce on issue which he has burden and then close case.
Defendant would do likewise

48
 • Defendant adduces evidence first if burden of proof is upon him/her – Order 19 Rule
6(2)(a)
• Where the burden of proof is shared – Order 19 Rule 6(3)
• Where there is a dispute as to the party on whom the burden of proof rests, the court
directs – Order 19 Rule 6(4)

Trial (Steps of a trial)

Before proceeding to hear the evidence, the Court may having regard to O19 R 10 (6)
require the parties to briefly state issues of fact and questions of law. [initial address
or opening address]
In terms of R4, the Magistrate may address a non-part witness to stay outside the
court: the reinstatement of the common law to prevent witnesses from tailoring or
fabricating evidence, to suit evidence they already have.

If a witness who is supposed to be outside stays in court the evidence he gives lacks
credibility but does not affect admissibility.
S v Mutanjana 1972 (4) SA 635 – R5(2)

Where the question of dispute is of law only the statement may be admitted in
written form or viva voce and court can decide the matter and the initial address.

Where the dispute is mixed [facts and law] and it can be decided by a question of
law only, the court may decide it accordingly after address by parties on issue of law
only.
Either party can decide to exercise power under R5 (4)
Erasmus v Four Will Mtrz 1975 (5) SC
R5(4) must be resorted to whether:
1. Facts are in dispute and law is clear
2. Facts and law are both disputed and the facts are a decisive issue

•
• Where the burden of proof on all issues is on the plaintiff the trial proceeds in the
following order:

49
 – Opening address – Order 19 Rule 5(1)
– Adduction of evidence by the plaintiff – each witness normally goes through:
• Examination in chief
• Cross-examination
• Re-examination
• Chronological order of trial where burden of proof is on plaintiff continued:
– Close of plaintiff’s case
– Adduction of evidence by the defendant (examination-in-chief, cross-
examination and re-examination of each witness)
– Close of the defendant’s case
– Closing address – Order 19 Rule 6(8)
– Judgment

Trial (Absolution from the instance)

• Defendant may apply for absolution from the instance if he/she is of the view that the
evidence led by the plaintiff is insufficient to establish a prima facie case – Order 19
Rule 6(1)(b)
• Test applied by he court in deciding whether to grant the application is: whether a
reasonable court might find in favour of the plaintiff on the evidence presented –
Supreme Service Station (1969) (Pvt) Ltd v Fox and Goodridge (Pvt) Ltd 1971 (1)
RLR 1
• The court can grant absolution from the instance as its final judgment where the
plaintiff fails to prove his/her case and the defendant fails to prove his/her defence.
The test applied is: whether a reasonable court could or ought to grant judgment in
favour of the plaintiff on the evidence presented – Supreme Service Station case
(supra)

Trial (Recalling of a witness)

• The court can recall a witness on its own initiative or on application by either party –
Order 19 Rule 6(6)
• If the application to recall a witness is opposed, the court has the discretion to grant it
despite the opposition on the ground of surprise or other reasonable ground.
• The court takes into account the flowing factors in deciding whether to grant an
opposed application for recalling a witness:
• Prejudice to the opposing party
• Risk of fabrication of evidence to remedy shortcomings in the applicant’s case
• The need for expeditiousness in disposing of litigation
(Pauley v Marine and Trade Insurance Co Ltd (2) 1964 (3) SA 657 (W))

Trial (Re-opening of case)

• Either party may apply to re-open his/her case after he/she has closed his case by
calling a new witness to give evidence. The application will not be granted if the
evidence was intentionally withheld out of its proper order – Order 19 Rule 6(5)
50
 • Court exercises its discretion judicially upon consideration of all the relevant factors.
Factors provided by the courts over the years should be regarded as guiding principles
and not inflexible requirements.
• The factors which are usually considered by the court in deciding whether to allow re-
opening include:
i. The reason why the evidence was not led timeously;
ii. The degree of materiality of the evidence;
iii. The possibility that it may have been shaped to relieve the pinch of the
shoe;
iv. The balance of prejudice, i.e. the prejudice to the plaintiff if the
application is refused, and the prejudice to the defendant if it is granted.
It may include such factors as the amount or importance of the issue at
stake; the fact that the defendant's witnesses may already have dispersed;
the question whether the refusal might result in a judgment of absolution,
in which event whether it might not be better to let the plaintiff lead the
evidence rather than to put the parties to the expense of proceedings de
novo;
v. The stage which the particular litigation has reached;
vi. The healing balm of an appropriate order as to costs;
vii. The general need for finality in litigation;
viii. The appropriateness or otherwise of visiting the remissness of the legal
practitioner upon the client.
(Mkwananzi v van der Merwe and Another 1970 (1) SA 609 (A) particularly pp 616 – 618) ,
Polly v Marias 1964 (3) SA 659, Simon v Van der Burge 1954 DR 53

N.B: Court does not have power to call first witnesses mero motu

JUDGMENT
S18 Magistrates Court Act
Where the prayer is for judgment for defendant, that is the order that should be
made, instead of may dismissing plaintiffs claim unless circumstances are that they
should be absolution from instance.
S and T Import and Export Pvt Ltd v Controller of Customs and Exercise 1981 (2)
ZLR 284
An order dismissing a claim with costs is infact an order of absolution for instance
Hosean v Billiard SC 132/86.

51
The test to be applied from order of absolution from instance defers depending on
whether absenteeism is being considered at the close of plaintiffs case, before the
defendants case or considered at close of both parties cases.
At the former stage, the test is whether a reasonable court might find in plaintiff’s
favour, whilst at the latter stage, the test is whether a reasonable court ought to find
in plaintiffs favour.
Supreme Service Station 1969 Pvt Ltd v Fox & Goodridge 1971 (1) RLR

ENFORCEMENT OF JUDGMENT
Enforcement of Judgment
• Method of enforcement depends on the type of judgment
• Judgment for payment of money enforced by:
– Warrant/writ of execution against property – sections 20 – 25 of the Act and
Order 26 of the Rules;
– Garnishee order – section 33 of the Act and Order 29 of the Rules;
– Civil imprisonment – sections 26 – 32 of the Act and Order 28 of the Rules

Enforcement of Judgment (Methods)

• Judgment of ejectment enforced by warrant/writ of ejectment – Order 26 Rule 1(1)(c);
• Judgment of delivery of property enforced by warrant/writ of delivery – Order 26
Rule 1(1)(b);
• Order ad factum praestandum enforced by contempt of court (civil) proceedings.
• Garnishee orders
• Civil imprisonment.

Enforcement of Judgment (Lapse and Prescription of Judgment)

Judgment lapses after 2years from the date of judgment – section 20(4) of the Act, If cant
obtain writ after two years no writ shall be issued after lapse of two years unless
judgment is reviewed but a writ of execution once issued shall remain in force or
valid until it is satisfied and the court order can be reviewed in court it was
pronounced or in any other court having jurisdiction.
Judgment becomes prescribed after 30 years from the date of judgment – section 15(a)(ii) of
the Prescription Act, Chapter 8:14

Warrant/Writ of Execution
• The following property is exempt from execution:

52
 • Necessary beds, bedding and clothes of the judgment debtor and his/her
family;
• Necessary furniture and household utensils up to a prescribed maximum value;
• Supply of food and drink for one (1) month;
• Necessary tools and implements of trade, tools of cultivation of land up to a
prescribed maximum value;
• Professional books, documents or instruments necessary to the debtor’s calling
up to a maximum prescribed value
(Section 25 of the Act)
• Must execute against movable property before proceeding against immovable
property – section 20(1) of the Act; Kanyanda v Mazhawidza and others 1992 (1)
ZLR 229 (SC)
• Warrant of execution should not be issued before the day following that on which
judgment is given except where judgment was by consent or default – Order 26 Rule
1(7)
• Immovable property which is subject to a preferent claim, e.g. a mortgage bond, must
not be subjected to execution unless:
• The preferent creditor has been served with personal notice of the intended
sale in execution;
• The proceeds of the sale (will be) sufficient to meet the preferent creditor’s
claim in full or the preferent creditor confirms the (intended) sale in writing
(Section 20(2) of the Act)

Warrant of Execution (Procedure – Movable Property)

• Warrant issued by the clerk of court – Order 26 Rule 1(1)(a)
• It is a court process authorising the messenger of court to attach and sell the
debtors property as is necessary to satisfy the judgment debt.
• It must be served by Messenger of Court S20 – 25, Messenger of Court and
Order 26 MC
• NB: There is no warrant of execution against the state, State Liability Act
Chapter 8:14
•
• Execution creditor to furnish security to the messenger of court – Order 26 Rule 2
• Messenger of court serves warrant on judgment debtor and gives notice of attachment
and notice of removal – Order 26 Rule 4A(1) as read with Rule 5(1) – (5)
• Messenger of court removes attached property to a secure place – Order 26 Rule 5(7)
• Sale of property advertised – Order 26 Rule 5(12)
• Notice of sale in execution displayed at court house – Order 26 Rule 5(13)
• Property sold publicly to the highest bidder – Order 26 Rule 5(10)

53
 • Notice periods may be reduced if attached property is perishable or judgment debtor
consents – Order 26 Rule 5(15)
• Sale to be stopped as soon as sufficient money to satisfy the warrant and costs of sale
has been realised – Order 26 Rule 5(16)
• Costs of execution shall be a first charge on the proceeds of the sale in execution
unless the court orders otherwise – Order 26 Rule 3(1)
• Messenger of court provides return of service upon completion of sale in execution to
which he/she attaches a statement of details of the property sold, the purchasers and
the distribution of the proceeds – Order 26 Rule 3(8)

Warrant of Execution (Procedure)

• Special Rules on attachment of leases and negotiable instruments –Order 26 Rule 6

Warrant of Execution (Procedure – Immovable Property)

• Special Rules on execution against immovable property including description of the
property to be attached (in the warrant), mode of attachment, persons on whom the
warrant is to be served, manner of sale (by public auction), transfer of the property
upon sale, manner of distribution of proceeds of sale, etc
(Order 26 Rule 7)
– Special Rules on attachment of a dwelling – Order 26 Rule 8

Warrant of Execution (General)

– If attached property is claimed by a third party:
– Messenger of court shall give notice of the claim to the execution creditor –
Order 26 Rule 3(6)
– Execution creditor should notify the messenger of court within 7 days if he/she
admits the claim - Order 26 Rule 3(7)
– Messenger of court will institute interpleader proceedings if the execution
creditor reject s the third party’s claim – Order 27 Rule 1(1)(b)

Stay of Execution
The Court has power to order the messenger of court on application by the judgment
.....”good cause shown”. Showing reasonable circumstances which would make the
court and equitable as between the parties that executions should be stayed.
Coham v Cohen 1979 RLR 184
The Applicant must certify the court of the potentiality of suffering irreparable harm
or prejudice, see Santam v Pedgert 1981 ZLR 132
As a general rule, there would be no stay were the judgment is for the payment of
money, because generally there is no problem with restitution.

54
Warrant of ejectment against property CIV 27 and SI289/83. The ejectment
attachment must be done at the same time pari passu.

GARNISHEE ORDER- amended by SI-162-85

Garnishee Order
• Definition: An order directing payment of a judgment debt by a third party
(garnishee) who owes the judgment debtor some money. Payment may be lumpsum
or through periodic deductions from the judgment debtor’s salary (subject to section
33(6) of the Act)
• Preliminary notice required where the garnishee is the state
• The notice must be served on the specified officials – Director SSB, Head of Ministry
or Department or Force, Chief Paymaster ZNA, Secretary to Parliament as the case
may be – Order 29 Rule 1(1a)

Garnishee Order (Preliminary Notice)

• Director SSB or Chief Paymaster ZNA, as the case may be, will respond to notice
with own notice setting forth:
• The amount of money that is or will be owed to the judgment debtor as salary
or wages;
• The amount and nature of any deductions required to be made from such
salary or wages;
• The earliest date from which payment may be made in terms of a garnishee
order
• (Order 29 Rule 1(1c)

Garnishee Order (Procedure)

• Ex parte application supported by affidavit – Order 29 Rule 1(1) as read with Order
29 Rule 1(2)
• Where application is against the state, notice from the Director SSB or Chief
Paymaster ZNA as the case may be must be annexed to the affidavit – Order 29 Rule
1(3a)
• Where application is to a court other than that in which judgment was given, a
certified copy of the judgment shall be annexed to the affidavit – Order 29 Rule 1(3)
• Director / City pay master must give notice to creditor that has complied
with order relating to salary deduction.
• The earliest dated of commencement of deduction
• Service of provisional order shall not restrain alienation until the date is
provided in terms of R1(1)(c)

55
 • The provisional order and final order must be served on the officials on
whom the application was served SI162/1985
•

CIVIL IMPRISONMENT
Civil Imprisonment
• Available where the judgment debt has remained unsatisfied for 7 clear days or the
judgment debtor has admitted that he/she has no attachable property in open court or
the messenger of court has given a nulla bona return of service – section 26(1) of the
Act
• Not meant to punish the judgment debtor for failing to pay the debt but is meant to
force the debtor, who has the means to pay the debt but is unwilling to do so, to pay

Civil Imprisonment (Procedure)

• Clerk of court issues summons for civil imprisonment – Order 28 Rule 1(1)
• Summons served on the judgment debtor personally by the messenger of court
because it affects liberty – Order 7 Rule 5(1)
• The summons calls upon the judgment debtor to appear in court on a date specified in
the summons (the return day) to show cause why a decree (order) of civil
imprisonment should not be made against him/her
• On the return day, the court will conduct an inquiry into the judgment debtor’s failure
to pay – Order 28 Rule 1A(1)
• The court may receive oral or written evidence in the inquiry – Order 28 Rule 1A(2)
• In conducting an inquiry, the court takes into account the factors listed in section 27
of the Act and Order 28 Rule 1B(2)
• The court will grant the decree of civil imprisonment if it is satisfied that the
judgment debtor has the means to satisfy the judgment debt – Order 28 Rule 1B(1)(a)
• Decree will also be granted if the judgment debtor is in default (proviso to Order 28
Rule 1A(1)
• The warrant for civil imprisonment directs the messenger or court to arrest the
judgment debtor and lodge him/her in a specified prison
• The officer in charge of the prison must receive the judgment debtor and retain
him/her according to the warrant
• The judgment debtor will be released if the judgment creditor does not pay for his/her
upkeep – section 32 of the Act
• Decree of civil imprisonment may be suspended if the judgment debtor offers to pay
the debt in instalments – section 28(1) of the Act
• The judgment creditor may apply for a warrant for civil imprisonment if the judgment
debtor defaults in his/her instalments – Order 28 Rule 3

Civil Imprisonment (Superannuation of decree)

56
 • Decree of civil imprisonment becomes superannuated (lapses) after 2 years from the
date of the decree or the date of the last payment but it can be revived in the same way
as a judgment – section 29 of the Act
• Any warrant issued under a decree that has become superannuated lapses with the
decree – R v Chakanetsa 1968 (4) SA 92 (RA)

SUSPENSIVE
If the debtor responds in summons by offering to pay in instalments, a decree could
be made and suspended in terms of his offer.
If he defaults, a warrant for arrest can be made in such a case the time for expiration
for the civil decree of two years will run from date of decree or order S29 Magistrate
Court Act. R v Chakanetsa 1968 RLR 182
If the debtor defaults the judgment editor can ask the Clerk of Court to issue a
warrant of civil imprisonment and maybe required to furnish evidence in affidavit
form. R3
Costs
A judgment creditor who proceeds to apply for decree of civil imprisonment despite,
the debtor’s bona fide offer to pay or hid inability to make an offer maybe to order to
pay costs of application.
The judgment debtor shall bear costs of any proceedings for the suspension or
discharge of any decree or warrant or order for civil imprisonment unless the
judgment creditor is in somewhat responsible for proceedings S28 (2)
The discretion of the court is limited by these provision S28(3)

CONTEMPT OF COURT
No rules governing this enforcement.
It is used to enforce orders as factum praestandustum [order restraining from doing
or doing an act].
These are rare in the magistrate’s court because most judgments ate mostly sounding
in money.

The two types of contempt:

57
 1. Criminal Contempt – characterised by conduct disrespectful to court either
inside or outside the court. Calculated to bringing administration of justice
into disrepute.

2. Civil contempt – arises out of wilful mala fide failure to comply with a simple
order of court. The primary object of civil contempt of court is to compel by
means of arrest, communal or jail or by a fine the observance of a civil order.
Main objective is to compel compliance. For that reason a civil communal
order is suspended in order to allow the person in contempt to comply.
In order to succeed in having a person being held to be in contempt, the
person seeking the order must establish the following:
a) That there is an order ad factum ordestum against the defendant
b) Order was served on the defendant or order came to his personal notice
c) Respondent failed to comply with order

Once the above has been established, the onus possess to

defendant/respondent to establish the balance of probabilities or that, though
wilful, it was not malafide.
Haddow v Haddow 1974 (2) SA, 181 (R)
Clement v Clement 1961 (3) SA 861
Mudzimu v Municipality of Chinhoyi HH33/86

APPLICATION
Application procedure is not specifically provided for, one must proceed by way of
action [Summons].

1. Interlocutory Applications
These are applications made by a party to an existing or contemplated litigation
at intermediatory or preliminary stage.

58
 Application incidental to the main application e.g. maintenance pendens litem
or application to compel further particulars

2. Applications proper
Applications which commence litigation and take place of summons.
Application procedure is not used in the Magistrates Court unless specifically
provided for.
There are two types of applications proper
a) Applications on notice – notify the other party, obligation to notify (O22 R1)
b) Ex parte applications – could go ahead and not notify application for a
garnishee order, substituted service S34 Act

Order 22 – General Procedure

Except where otherwise provided; an order or application for an order affecting any
other party or person, shall be on not less than seven [7] days notice.
Application must state precisely the terms of the order sought and he time the
application would be made to court. CIV 1, 2, 3
In terms of R1 (2), the application may be supported by affidavit. However, certain
applications must be supported by affidavit, e.g. application for summary judgment,
where claim is illiquid.
It is good practice to always attach an affidavit where it is necessary to produce
evidencing part of application.
In terms of R2(1)(a), the Respondent may consent to the order sought in the
application not less than 48 hours before the hearing, once there is such a
development it would be unnecessary for party to appear.
Application may be opposed by respondent and notice of opposition must to be
delivered at least 48 hours before hearing application R2(3)
In terms of R3(1), the applicant may file replying or answering affidavits to
respondents affidavit

59
No further affidavits may be filed after the answering affidavit unless the leave of
the court has been obtained R4. Court may receive oral evidence at hearing of
application.
Where oral evidence may term proceedings into a trial, the court may refuse to hear
it and order that the issue be tried in the fashion of trial R5(c)

Ex parte Application R7(1)

Except where otherwise provided, ex parte applications must be in writing stating
briefly or concisely the terms of the order sought grounds upon application is made
and must be said by party making the application or legal representative.
In terms of R7(2), no affidavit or other evidence is necessary unless one is specifically
required to attach the same by other provisions or by the court R7(3) provides for
return day or anticipate R8,9,10

Specifications
Rescission of Judgment S39, O30
A party on whom such judgment has been granted can apply for rescission and must
be made within one [1] month of the judgment coming from knowledge. 1 calendar
month in SI
Rebuttable presumption of knowledge of the judgment within two days thereof.
Application must be supported by affidavit setting why applicant did not appear at
hearing or if did not file plea.
Setting grounds of defence bona fide
If the application for rescission is brought out of time there is need to seek
condonation first. Late application be condones
Mahoka v Libernberg SC 206/91

Circumstances under which default can be granted [see default]

In terms of R1 (3). The applicant must pay into court, the amount of costs against
him and an amount of security for costs of the application.

60
R2(1) – The court must dismiss if applicant was in wilful default.

Nauman v Marks 1960 R & N 166

If Aplicant was not in wilful default and has filed acceptable grounds on the merits,
the court has a discretion to rescind or vary the order it granted and can give
direction as is necessary.

What is wilful default? Three components

i. Knowledge by respondent that action has been brought against him
ii. With that knowledge deliberately refrains from doing what is required of him
although was free
iii. Mental attitude in hi mind of not caring about consequences of the default

Once points 1 & 2 are established point 3 is presumed.

Gundani v Kanyemba 1988 (1) ZLR (5) 226
The court must be satisfied with grounds of defense before granting rescission.
Where the summons d not disclose a cause of action, court must grant rescission
Bingari v Mondiya Sc 91/1986
The rule has been to establish “good prima facie defense”
The rescission may be granted partially as in Musabasa v Mimba SC 42/92

INTERDICTS S12/O232
Is an order prohibiting or restraining someone from doing something or ordering
someone to perform a particular act or to deliver a particular thing.
It is called an injunction.
There are two main types of classifications of interdicts.
First is divided into three categorises:

2
Magistrates Court can not grant a declaratory order only the High Court can: Civil Service Association v Public
Service Association HH11/14

61
 1. Prohibitory interdicts – requires person to abstain from a threaten wrong or
from continuing doing that wrong positive
2. Mandatory interdict – an order compelling a person to do a act, to remedy
some wrongful state of affairs of which hw is responsible e.g. ordered to
remove building encroaching some ones property.
Although such an order amounts to S.P. of an order, it is not barred by S14 of
the Act.
3. Restitutionary interdict – order that a person who has unlawfully deprived
someone of possession of property to restore possession.
URGENT Spoliation order [issue of owner irrelevant] - Why is it taken as an
urgent matter – to prevent people from taking law into their own hands

Second is divided into two categories

Contempt of court cases
Consolidate Fish distributors P/L v Zive & Ors 1968 (2) SA 512
Calverwell v Beirs 1982 (4) SA 490 W
Harare West Rural Council v Babau 1985 (1) ZLR 179
Lindsay v Lindsay 1995 (1) ZLR 196 (S)
Kaserera v Rio zim Pvt Ltd HH 171/14
Herbestain & Van Vincent 4th Edition 1997, Civil Practice of the Supreme Court of
South Africa 825
1. Permanent or final – granted without a limitation to secure a permanent end
to an unlawful action or state of affairs
2. Interlocutory temporary – granted pen liten [pending litigation], it is designed
to protect rights pending contemplated litigation or outcome of litigation
already instituted, e.g. husband wants to sale property in pending divorce,
wife will apply for an interdict.

Requirements for a final interdict

1. The applicant should establish a clear right, clearly established in law

62
 2. Applicant should show that has either suffered actual injury or has a
reasonable apprehension of injury
3. Applicant should show that there is no other remedy by which he/she can be
protected in the same way as by an interdict.
Setlogel v Setlogel 1914 AD 221, 227
Flame Lily Investments Company P/L v Zim Salvage & Ors 1980 ZLR 379

Requirements for Interlocutory

1. Applicant should show a right which is prima facie extablished although it is
open to some doubt
2. Applicant should show that has either suffered actual injury or has a
reasonable apprehension of injury
3. Applicant should show that there is no other remedy by which he/she can be
protected in the same way as by an interdict
4. Injury must be irreparable
5. Balance of inconvenience must favour the applicant

Authorities are the same as in final interdict. Chikore v Nyamukapa HH 267/90

A final interdict will not be granted in motion unless the facts stated by the
applicant are admitted by respondent and that the facts stated therein show a
balance in favour of applicant.
Stellenbasch Farmers v Stellen Winery 1957 (4) SA 234
Webster v Mitchell 1948 (1) SA 1186 WLD

For a temporary interdict the degree of proof is not as high as that in final. Before
granting a temporary interdict, the court considers question of prejudice to either
party. In testing prejudice, the court will consider where balance of inconveniences
lies. It lies with respondent then application will be dismissed, if it lies with
applicant then it will be granted.

63
Where actual injury is alleged, it must be one of continuing nature. One need not to
provide proof only of injury but must prove that injury is likely to continue.
Performing Pty Society Ltd v Butcher & Ors 1972 (2) RLR 362
Performing Pty Society Ltd v Bermer 1966 RLR 209

On the absence of another

Reserve Bank of Rhodesia v Rhodesia Railways 1966 RLR
Callmen v Bristale 1976 (1) RLR 97
Section 14 and Order 23
Application can be made ex parte and must be supported by affidavit and
provisional order together with application must be served on respondent and can
be served any time any day and respondent may anticipate the return day.

Spoiliation order / Mandamus Van Spolie

Arises where there is an illicit disposition of ones property either movable or
immovable. Violence and fraud are associated with spoliation but are not.
Requirements
1. Application must prove possession prior spoliation
2. Wrongful deprivation of possession with consent prove that one despoiled is
in a position to restore possession. Partegeiter & Ors v ................... 1966 (6) SA

Effects of a spoliation
1. Restore the status quo before the illegal dispossession.
2. Does not decide right of ownership [no person is expected to take law into
own hands and to dispossess another illicit of property. Must use proper legal
channel]. Maintenance of law and order is paramount and of importance, that
the individuals possession of property, even a malafide possession can be
protected. Value of property of claim must be within jurisdiction of the court.
S12
Silas v Crobeler 1966 (1) SA 583

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APPLICATION FOR SPOLIATION ORDER
Spoliation Order
Definition: A spoliation order or mandament van spolie is an order compelling a party who
has unlawfully dispossessed another of property to restore possession

• Does not decide issues of ownership or legality of possession, therefore can be

obtained against the rightful owner or possessor. Rationale of this stance is to
discourage people from taking the law into their own hands, thus causing a breach of
peace – Mans v Loxton Municipality and Another 1948 (1) SA 966 (C) at 977
• Requirements for Applicant to succeed:
• That he/she was in peaceful and undisturbed possession of the property;
• That Respondent deprived him/her of possession against his/her consent.
(Botha and Another v Barrett 1996 (1) ZLR 299 (SC) at 302)
• Respondent must be a position to restore possession i.e. Must not have since alienated
or disposed of the property – Portgieter v Davel and Another 1966 (3) SA 555 (O)
• Counter-spoliation permissible provided the person recovering possession acts
forthwith and without breach of peace. Rationale for allowing counter-spoliation is
that the original possessor is regarded as not having lost possession.
(Mans v Loxton Municipality and Another 1948 (1) SA 966 (C) at 975 – 977)
• Ex parte application supported by affidavit – Order 23 Rule 1(1) and (2);
• Provisional order granted calls upon Respondent to appear and show cause against it –
Order 23 Rule 3(2);
• Provisional order and affidavit served on Respondent – Order 23 Rule 4(1)
• Respondent may anticipate return date on 24 hours notice – Order 23 Rule 3(3)
• Court may order deponent to affidavit to attend court for cross-examination – Order
23 Rule 4(2)
• Court may vary or discharge order on cause shown – Order 23 Rule 4(3)

APPEALS
Appeals (Right of Appeal)
APPEALS O31
A litigant who is dissatisfied with the judgment of court of first instance may in
certain circumstances appeal against that judgment to a higher court.
Not all judgments are appealable, e.g. cannot appeal against interlocutory judgment
[have to obtain leave of court subject to the rules that no appeal lies before the
hearing is commenced, the parties lodge with the court a written agreement that the
decision of the court is the final, a party for any civil suit or proceedings in a
magistrates court may appeal as of right to the appropriate higher court from certain
types of judgment.

65
Every part appealing must d so with the period and in manner prescribed by the
rules.
Court of appeal may in any case extend the period of noting appeal. Party appealing
should tender security for costs, not to delay or harass other party.
Must also tender / guarantee to be in position to prepare costs for appeal.
It is decided on the record
Other party can file a cross appeal.
R2 (1) (a) and (b)
Appeal from magistrates to high court before proceeding to supreme court.
S40 (i): as final cannot appeal

Execution pending appeal3

No court has authority to order authorising any party to execute notwithstanding
the noting of an appeal. If a party wishes to execute pending appeal it has to make a
formal application to court and court has discretion to grant leave to execute
pending appeal once an application is made and in the exercise of its discretion, the
court will be guided by following:
1. Potentiality of irreparable harm or prejudice being sustained by appellant on
appeal if leave to execute where granted.
2. Potentiality of irreparable harm being sustained by respondent on appeal if
leave to execute were to be refused.
3. Prospects of success on appeal, including more particularly, the question as to
whether the appeal is frivolous or vexatious or has been note with the bona
fide intention of seeking to reverse the judgment but for some indirect
purpose, e.g. to gain time or harass the other party and where there is
potentiality of irreparable harm or prejudice both the appellant and
respondent, the court has to consider balance of hardship or convenience as
the case maybe.
Deco Pty v Commercial Careers College 1980 Pty 1991 (2) ZLR 61 (H)

3
Ritevete Printers v Aadams SC15/2011

66
As regard prospects of success on appeal the test is whether “the appeal is
reasonably arguable and not manifestly doomed to failure” – the question id not
whether the appeal will succeed, but, on a lesser standard, whether the appeal is free
from predictable failure S v Hudson 1996 (1) SAC 431 W 434 B-c

• Parties may lodge written agreement with court that judgment shall be final – section
40(1) of the Act as read with Order 31 Rule 7
• The following judgments are appealable:
– Judgment for the plaintiff;
– Judgment for the defendant;
– Judgment of absolution from the instance;
– Judgment refusing rescission, variation or correction of judgment;
– Any rule or order having the “effect of a final and definitive judgment”;
– Judgment overruling an exception (where parties consent, or in conjunction
with the principle case or where it includes an order as to costs).
(Section 40(2) of the Act as read with sections 18 and 39)
• Meaning of “final and definitive effect” :
– Steytler NO v Fitzgerald 1911 AD 295
– Globe and Phoenix v Rhodesian Corporation Ltd 1932 AD 142

Appeals (Procedure for Noting)

• Starts with written request for (written) judgment accompanied by the prescribed fee.
The request should be made within 7 days after judgment – Order 31 Rule 1(1)
• Magistrate must deliver written judgment to the clerk of court within 14 days of
request – Order 31 Rule 1(1)
• Written judgment must set out:
– The facts found to be proved;
– The reasons for judgment.
(Order 31 Rule 1(1)(a) and (b))
• Magistrate must date the judgment and clerk of court must date stamp it – Murawa v
Valeta 1996 (1) ZLR 1 (SC)
• Clerk of court must notify the party who applied for the written judgment of its
availability forthwith – Order 31 Rule 1(2)
• Appeal must be noted within:
• 21 days after the date of judgment; of
• 14 days after delivery of the written judgment to the clerk of court by the
magistrate, whichever is longer.
(Order 31 Rule 2(1))
• Appellant must seek condonation of late noting of appeal if out of time – Murawa v
Valeta 1996 (1) ZLR 1 (SC)
• Appeal noted by:
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 – Delivery of notice; and
– Giving security for the respondent’s costs (prescribed amount) or written
undertaking to pay (if accepted by the clerk of court).
(Order 31 Rule 2(2))
• Notice of appeal must state:
- whether the whole or part only of the judgment or order is appealed against
and, if part only, then what part; and
- the grounds of appeal, specifying the findings of fact or rulings of law
appealed against.
(Order 31 Rule 2(4)(a) and (b))
• Respondent may abandon the judgment appealed against wholly or in part except in
defamation or seduction cases – section 41 of the Act as read with Order 31 Rule 6
• Respondent may cross-appeal – Order 31 Rule 2(3)
• Magistrate to give reasons for judgment that specifically address the findings of fact
and/or any ruling of law appealed against – Order 31 Rule 3(1)(a)–(c)
• Clerk of court to prepare record as soon as reasonably possible after noting of appeal
and lodge it with the Registrar of the High Court – Order 31 Rule 5(1)
• Requirements for the format of the record are set out in Order 31 Rule 5(2) (10)

Appeals (Execution Pending Appeal)

• Magistrates Court may order execution of the judgment despite the noting of an
appeal upon application by the judgment creditor – section 40(3) of the Act
• Court takes into account the following factors in deciding whether to permit execution
pending appeal or not:
• Possibility of irreparable harm or prejudice;
• The prospects of success on appeal;
• Balance of hardship
(Dabengwa and Another v Minister of Home Affairs and Others 1982 (1) ZLR
61 (HC))

MAINTENANCE
Maintenance
• Maintenance Court
• (Maintenance Act, Chapter 5:09)
– Every Magistrate Court is a Maintenance Court within its area of jurisdiction –
section 3 of the Act. However, the Maintenance Court is a separate court with
its own jurisdiction and procedure (see Maintenance (General) Regulations,
1988)

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 – A Maintenance Court’s main function is to determine claims for maintenance
by or on behalf of dependants against responsible persons
• ‘Responsible person’ means a person who is legally liable to maintain another –
section 2 of the Act
• Husbands and wives are legally liable to maintain each other regardless of whether
they are married under general law or customary law – section 6(3)(a) of the Act
• Parents, including those married customarily, are jointly liable to maintain their
children – section 6(3)(b) of the Act

Maintenance (Procedure)
• Complaint on oath (affidavit) by dependant or someone with custody of dependant –
section 4(1) of the Act and form M1 of the Regulations;
• Affidavit must set out the following:
– The grounds on which the Respondent is liable to maintain the dependant e.g.
marriage or paternity;
– The list of expenses of the dependant and the applicant’s (complainant’s)
income and expenses where appropriate;
– Particulars of failure or neglect to provide reasonable maintenance.
• Maintenance officer issues summons – section 4(1) of the Act and form M2 of the
Regulations;
• Affidavit by Applicant must be attached to summons – form M2 of the Regulations
• Summons served by the police (section 29(1) of the Act) or by the messenger of
court;
• Respondent responds by notice of income, dependants and expenses – form M3 of the
Regulations
• Court conducts inquiry into complaint on the day specified in the summons – section
5(1) of the Act;
• Inquiry conducted in a manner best fitted to do substantial justice – section 13(b) of
the Act; Zimunya v Zimunya HH387/84
• Any person may be represented by a legal practitioner – section 13(a) of the Act;
• Court has power to subpoena witnesses and call for production of books and
documents – section 13(c) of the Act.
• Court shall have regard to the following in making order:
- The general standard of living of the responsible person and the dependant,
including their social status;
- The means of the responsible person and the dependant;
- The number of persons to be supported;
- Whether the dependant or any of his parents is able to work and, if so,
whether it is desirable that he or she should do so.
(Section 6(4) (a-d) of the Act)
• Court makes order after inquiry (section 6(1) of the Act) if satisfied that the
respondent is liable, is able to contribute and fails or neglects to do so (section 6(2) of
the Act);
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 • Court may make direction against employer if employer had prior notice and
opportunity to show cause why direction should not be made or consents to direction
– section 6(5) of the Act;
• Direction may be made against the state provided notice given in the prescribed
manner – section 6(7) of the Act;
• Court may direct that payment should be made through the clerk of court – section
6(6) of the Act.

Maintenance (Appeal Against Order)

• Appeal goes to the High Court – section 27(1) of the Act;
• Appeal does not suspend operation of the judgment unless the court orders otherwise
on good cause shown – section 27(3) of the Act.

Maintenance (Payment Through Clerk of Court and Transmission of Order)

• A party in whose favour an order has been made may apply for an order to have
future payments made through the clerk of the Maintenance Court – section 19 of the
Act;
• Clerk of court may transmit order to the province where the responsible person is
residing – section 20 of the Act.

Maintenance (Enforcement of Order)

• Maintenance order may be enforced in any of the following ways:
• Direction against employer – section 9 of the Act;
• By the clerk of court in the same way as a civil judgment of the Magistrates
Court – section 22(1) and (2) of the Act;
• Prosecution (failure to comply with a maintenance order is a criminal offence)
– section 23 of the Act.

• Procedure: Direction against employer-

– Application to the maintenance officer of the Maintenance Court where the
order is registered – section 9(1) of the Act;
– Maintenance officer gives notice to the responsible person and the employer
calling upon them to appear on specified date to show cause why the direction
should not be made section 9(2) of the Act;
– Court conducts inquiry and makes direction if satisfied – section 9(3) of the
Act.

• Employer’s obligations in relation to direction:

– Direction has precedence over any other court order requiring payment to be
made from the responsible person’s earnings – section 7(1) of the Act;
– No set-off or settlement of any debt from the responsible person’s earnings
until payment in terms of the direction has been made – section 7(2) of the
Act;
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 • Employer’s obligation in relation to direction continued:
– Failure to comply with a direction is a criminal offence – section 24 of the
Act;
– Must notify the clerk of the Maintenance Court within 7days if responsible
person is discharged or terminates employment – section 21(1) of the Act.
Failure to do so is a criminal offence – section 21(3) of the Act

Maintenance (Rehearing, Rescission, Variation of Order Made in One’s Absence)

• The following are some of the applications that can be made in terms of section 12 of
the Act:
– Applicant can apply for rehearing of application that was dismissed in her/his
absence;
– Respondent can apply for rescission of an order granted in default if he/she
wants to show that he/she is not liable or is already providing maintenance;
– Respondent may apply for variation of order granted in default if he/she does
not dispute liability but cannot afford the amount awarded.

Maintenance (Variation of Order due to Change in Circumstances)

• Either party may apply for variation of the order if there is a change in their personal
circumstances (or those of the dependant) or of circumstances in general – section 8
of the Act

Maintenance (Registration of Orders from the High Court)

• Parties may register maintenance orders granted by the High Court in the
Maintenance Court so that they can be enforced or varied through the Maintenance
Court – section 18 of the Act
•
• Wilful Default: Neuman [Pvt] Ltd v Marks 1960 R & N 166
• The issue was an appeal by the defendant now appellant to rescind a
judgment that had been given. The defendant had failed to appear hence
default judgment was arrived at. The appeal was dismissed and several
definitions were given relating to this issue. GARDENER J in Handricks v
Allen said “the other word which is sought to define wilful. That is a word of
familiar use in every branch of law and although in same branched of law it
may have a special meaning, it generally, as used in courts of law, implies

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 nothing blameable, but merely that the person of whose action of default the
expression is used, is a free agent and that what has been done arises from
the....action of his will....”In judgment of Fryl J the default was described as “a
spontaneous act of default on his part and consequently the act as wilful.”
• Hagsett v Buys 1913 C. P. D. @ 205
Maintenance (Termination of Orders (automatic))
• In respect of a child – section 11(1) of the Act;
• In respect of a spouse – section 11(3) of the Act.

Maintenance (Enforcement of Orders Outside Zimbabwe)

• Maintenance orders may be enforced in specified countries on a reciprocal basis –
Maintenance Orders (Facilitation for Enforcement) Act, Chapter 5:10

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